Fair Work Commission Guidance on Requests for Flexible Working Arrangements

The right for eligible employees to request a ‘flexible working arrangement’[1] has been enshrined in the National Employment Standards (NES) to the Fair Work Act 2009 (Cth) (Act) since 2022. A recent decision has examined what may constitute ‘reasonable business grounds’ for employers to refuse a request.

The Provisions

Under the NES,[2] an eligible employee may request a flexible working arrangement if one or more of the following circumstances apply:

(aa)  the employee is pregnant;

(a)  the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(b)  the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(c)  the employee has a disability;

(d)  the employee is 55 or older;

(e)  the employee is experiencing family and domestic violence;

(f)  the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.

These requests may only be refused where:

1. the employer has:
   • discussed the request with the employee; and
   • genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and
2. the employer and the employee have not reached such an agreement; and
3. the employer has had regard to the consequences of the refusal for the employee; and
4. the refusal is on reasonable business grounds.

The Fair Work Commission (Commission) can hear disputes about Flexible Working Arrangements.

Gurung v Knauf Gypsum[3]

In Gurung v Knauf Gypsum, the applicant, a full-time Payroll Officer, requested to work from home on Mondays and Fridays as he was required to care for his school aged children on those days. The employer refused that request.  Prior to the request, the applicant had been working in this way, until the arrangement was rescinded and he was directed to return to the office.

The employer asserted reasonable business grounds to refuse the request, and central to that reasoning was that his role was critical and required uninterrupted focus when carrying out his duties.  The employer determined this would be difficult to ensure if he was also caring for his two young children.

The employer offered alterative options including the opportunity to work full-time equivalent hours across four days per week or shorter days on Monday and Friday and longer days on Tuesday, Wednesday and Thursday. The applicant rejected those options and referred the matter as a dispute to the Commission.

Refusal was reasonable

The Commission agreed that the risk of interruption while the applicant undertook his work was very high and gave ‘rise to a real risk of error and inefficiency when performing an important and complex function’. The Commission further found that interruptions were likely the cause of performance concerns which had been raised with the applicant prior to the employer requiring him to return to work in the office.

Critically, the employer was able to draw on evidence that the requirements set out in the Act had been met as they:

1. discussed the request with the applicant;
2. genuinely tried to reach an agreement with him evident in the alternative options put forward;
3. had regard to the consequences of the refusal for the applicant.

Mele Taunisila v AGL Energy Limited[4]

In Mele Taunisila v AGL Energy Limited, the applicant, Ms Mele, was a full-time customer service consultant, and sought a flexible working arrangement allowing her to work only from home as she was over 55 years of age and a carer for her elderly mother. The employer had ‘Flexible Working Guidelines’ in place, which allowed employees working on a 12.00-8.00pm shift to work from home. It was in accordance with this guideline that Ms Mele worked from home, until the employer sought to return her to the office for at least some of her shifts.

Ms Mele made her request in writing.  The request was refused by the employer asserting reasonable business grounds.  Significantly, one of those grounds was that if Ms Mele only worked from home for the 12.00pm – 8.00pm shift, this would prevent an equitable distribution of tasks amongst the ConnectNow Customer Service team.  Alternative options proposed by the employer were refused and a dispute referred to the Commission.  At a hearing, the employer relied on evidence of a consistent decline in the Ms Mele’s performance over the five-year period she had been working from home, in part due to a lack of upskilling and training in her tasks.

The Commission accepted the employer’s arguments, finding that it was unlikely that Ms Mele’s performance would improve if she worked exclusively from home.  The Commission noted that when arbitrating such disputes, it must take account of ‘fairness between the parties’ and ordered that the alternative proposed by the employer, for a 6-month trial period with programmed 4-hour attendances in person, was appropriate.

Takeaway for employers

Employers must comply with procedural requirements and genuinely engage with employees who request Flexible Working Arrangements. If those requirements are met with documented evidence, including with respect to performance concerns where these persist under informal arrangements, this places employers in the best position to avoid disputes with employees, and failing that, defend their responses at arbitration.

[1] For information on the provisions see Flexible Working Arrangements – Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

[2] Section 65A(1)

[3] [2026] FWC 2371

[4] [ 2026] FWC 2428