What does an employer need to keep in mind before refusing an employee’s flexible work request?
Employers need to keep in mind the consequences of refusing an employee’s flexible work request. Recently on (4 February 2025), there was a decision by the Fair Work Commission (FWC) that considered the ‘reasonable business grounds’ when refusing a flexible work request. This decision was appealed. In the first decision, the Commissioner favoured the Catholic school that denied the coordinator’s request for flexible working arrangement saying there were ‘reasonable business grounds’ to refuse it (see related article). This decision was overruled by the Full Bench of FWC on appeal.
Why did the Full Bench not favour the school?
The employer was well- aware of the consequences of the refusal and did not include those in its written refusal.
The discussion by the employer offering alternatives, did not consider the financial consequences of the coordinator’s refusal and strong desire to maintain her current role.
What were the ‘consequences’ of refusal?
The Full Bench said that the Catholic School did not consider the financial and career impacts on the coordinator including:
Receiving a lower pay if she does not work at her current role.
She would be unable to manage a huge mortgage which would have a serious impact on her family.
The risk of a distinct disadvantage for her future career advancement.
What were the main reasons for the Full Bench to quash the Commissioner’s decision?
The Commissioner did not consider the employer’s failure to have ‘regard for the consequences of refusal of the employee’ required in the Fair Work Act.1
The Commissioner considered ‘reasonable business grounds as the only matter of substance in the resolution of dispute’ and did not consider the other requirements under the Fair Work Act.2 The other requirements included:
a. Ensured a discussion has taken place with the employee
b. Genuinely tried to reach an agreement to accommodate flexible working arrangements of the employee.
c. Considered the consequences of refusal based on reasonable business grounds on the employee.
Key Takeaways
· The Fair Work Act places a positive obligation on the employer to consider the consequences of a refusal for flexible work request on the employee and needs to ensure they include the consequences in the written refusal to the employee.
The employer needs to ensure all the requirements under the Fair Work Act are satisfied.
This article is general in nature and is not legal advice. If you need help dealing with working arrangements with employees, or require assistance with updating your workplace contracts, procedures and policies or another employment law matter, Voice Lawyers can assist you.
We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, or give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.
By Kayte Lewis and Tabitha Reji