By Anisha Dias and Giacomo Giorgi
Flexible work is no longer a matter of workplace culture or managerial preference. Following the implementation of the Secure Jobs, Better Pay reforms to the Fair Work Act 2009 (Cth) in 2022, disputes about flexible work requests are now regularly litigated before the Fair Work Commission (FWC) or, for some Western Australian state-system employers, the WA Industrial Relations Commission (WAIRC).
As a result, refusals are no longer assessed solely by reference to the reason relied upon. Increasingly, both the reason for refusal and the process by which it was reached are being closely scrutinised.
The real shift is not that employers have lost the ability to refuse flexible work requests. It is that refusals must now be reasoned, evidenced and defensible. The FWC is not simply asking whether an employer can point to a legitimate business concern. It is asking whether that reason genuinely explains why the proposed arrangement cannot work for the particular employee, in the particular role and workplace.
With increasingly mobile workforces, flexible and remote working preferences can conflict with return-to-office mandates, and this development has important implications for all employers, including law firms.
Recent cases suggest that both the substance of an employer’s reasoning and the process by which a refusal is reached may determine whether it withstands challenge.
The expanded role of the FWC
As flexible working arrangements have become entrenched in Australian workplaces, particularly through the expansion of hybrid work, remote work and flexible hours, the legal framework governing them has had to evolve in response. Under the pre-reform position, although eligible employees were entitled to request flexible working arrangements under the National Employment Standards, the legal consequences of refusal were relatively limited. The FWC’s role was largely confined to conciliation, meaning disputes rarely progressed beyond the workplace.
The Secure Jobs, Better Pay reforms were a legislative response to these changing workplace dynamics and the increasing prevalence of disputes. While they did not create any additional entitlements to flexible working arrangements, they significantly expanded the FWC’s role in resolving disputes, including through arbitration and binding orders, and introduced a structured framework and timeline governing how requests must be assessed before they can be refused.
Employers must now consult with the employee, genuinely attempt to reach agreement, consider the consequences of refusal and assess whether alternative arrangements could accommodate the employee’s circumstances before refusing a request.
In essence, the reforms move the assessment away from unilateral decision-making and towards a more employee-focused process.
How disputes are playing out
Recent decisions suggest that FWC scrutiny now operates on two levels: the substance of the employer’s reasoning (the ‘why’) and the process by which the refusal was reached (the ‘how’).
(1) Examining the substance of a refusal
A recurring theme in recent decisions is the FWC’s reluctance to accept generalised assertions about the impact of flexible work arrangements at face value. Employers frequently rely on general propositions such as collaboration being more effective in person, supervision requiring physical proximity, or productivity being best maintained in the office. Those considerations are not irrelevant. However, they will carry little weight unless bolstered by specific evidence as to how the requested arrangement would affect the business in the particular circumstances.
For example, Aoyama v FLSA Holdings [2025] FWC 524 and Chandler v Westpac [2025] FWC 3115 demonstrate how demanding that exercise can be in practice.
In Aoyama, the employer refused part of the request by the applicant to work from home 50% of the time, relying on concerns about customer responsiveness and the distraction of caring for a young child while working, but the FWC was not persuaded – the evidence rose no higher than assertion, and the employee’s existing remote arrangement had produced no demonstrated detriment.
Similarly, in Chandler, general assertions about the benefits of office attendance were outweighed by FWC being satisfied that the employee had demonstrated an ability to work effectively in a remote environment over a number of years.
These decisions do not suggest the concerns were implausible or irrational. Rather, they indicate the FWC expects them to be evidenced by reference to the particular role, workplace, employee and proposed arrangement. Broad, generalised assertions are likely to be insufficient.
Aoyama raises a further practical question for employers. While concerns about future productivity may constitute a legitimate business consideration, the decision provides limited guidance as to what evidence will be sufficient to establish that performance is likely to be adversely affected before the arrangement is implemented. Employers may be expected to substantiate anticipated operational impacts before they occur.
Until the FWC provides clearer guidance, the most reliable evidence of future impact may be an arrangement that has actually been tested. A refusal that rests on a prediction about how an arrangement would work invites the response given in both Aoyama and Chandler, so the practical effect may be that trial periods and staged arrangements are becoming less a generous compromise than the most reliable way to generate evidence.
The same reasoning limits an employer’s ability to rely on existing workplace arrangements as an answer to the request. In Paper Australia Pty Ltd v May [2025] FWCFB 224, the employer effectively treated the absence of an entitlement under the enterprise agreement as determinative. The FWC rejected that reasoning, emphasising that the statutory task is to assess the operational consequences of the request itself.
Existing workplace arrangements may form part of that assessment, but they do not answer the statutory question.
None of this means refusal has become practically impossible, and Gration v Bendigo Bank [2024] FWC 717 shows what a defensible refusal looks like. There, the employee sought to work entirely from home rather than attend the office two days per week under the employer’s hybrid policy.
The FWC upheld the refusal. The bank had genuinely engaged with the request, had a record of accommodating flexibility when specific needs arose, and the evidence did not establish that full-time remote work was necessary to meet the employee’s caring responsibilities. The FWC also observed that flexibility operates in both directions in an employment relationship.
Read together, the cases indicate where the dividing line actually falls. It is not between employers who have business concerns and those who do not. It is between employers who are able to clearly articulate, and demonstrate with cogent evidence, the detrimental impacts of the proposed arrangement versus those who rely on assertion.
The employer failed in Chandler because its refusal preceded any genuine consultation and the employee’s own working history contradicted its claims. In contrast, the employer succeeded in Gration in part because its record of accommodating flexibility gave its refusal credibility. Under the current framework, an employer’s strongest evidence is its own conduct in responding to the request.
(2) A focus on process
Beyond the substance of the refusal itself, the cases highlight that strict compliance with the statutory process in s 65A, including timing requirements, can itself be determinative. The procedural requirements are not merely administrative steps accompanying the decision-making process.
By requiring consultation, genuine attempts to reach agreement, consideration of alternative arrangements and consideration of the consequences of refusal, the framework directs attention to the employee’s circumstances before a refusal can be reached.
Naden v Catholic Schools Broken Bay [2025] FWCFB 82 makes this clear. In that case, the employer relied on operational reasons but failed to comply with s 65A(3)(c), which requires consideration of the consequences of refusal for the employee.
The FWC found no evidence that those consequences were considered at the time of the decision or reflected in the written response. That failure was decisive. The Full Bench confirmed that the requirements in s 65A(3) are cumulative, and if any element is not met, the employer is not entitled to refuse the request at all.
In Chandler, the employer also failed to comply with the procedural requirements in the FW Act, failing to provide a response with 21 days and, when it did provide a response, failing to provide substantive reasons for the refusal. Further, the refusal was conveyed before any genuine discussion of the request took place, and the FWC held that the consultation and genuine attempt to reach agreement required by s 65A(3)(a) must precede the refusal.
Discussions after the decision cannot retrospectively satisfy the requirement. The FWC found that these procedural failures were matters that ought to be taken into account when determining whether to exercise its discretion under s 65C.
Naden and Chandler demonstrates that the Act now places the employee’s circumstances at the centre of the statutory inquiry, and the FWC gives effect to that objective through a strict focus on process. An employer may have legitimate operational concerns, but those concerns cannot sustain a refusal unless they are reached through the statutory pathway prescribed by s 65A.
For practitioners, the lesson is that procedural compliance cannot be treated as a secondary consideration. A refusal supported by legitimate operational concerns may nevertheless fail if the statutory requirements have not been satisfied in full.
The WA position
For WA, many incorporated employers fall within the national system and the Fair Work Act, while partnerships and other unincorporated entities may be regulated by the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).
Since 31 January 2025, state‑system employees have had a statutory entitlement to request flexible working arrangements in specified circumstances, with employers required to respond in writing within 21 days. The state regime, introduced by the Industrial Relations Legislation Amendment Act 2024 (WA), was deliberately modelled on the federal provisions, and the substantive framework is broadly similar.
An aggrieved employee has a choice of forum: they may refer the dispute to the WAIRC or, alternatively, apply to the Industrial Magistrates Court alleging a contravention of the MCE Act, where civil penalties are available.
Notably, in Industrial Magistrates Court proceedings the onus rests on the employer to prove that its refusal complied with the MCE Act, including that it was on reasonable business grounds.
As the state entitlement is recent, there is little authority to date on how reasonable business grounds will be assessed, so the federal decisions discussed above are likely to be persuasive, though state-system employers should not assume the approaches will be identical.
What this means for employers and their advisers
The emerging case law emphasises the need for early legal involvement. The risk associated with flexible work requests is created during the decision-making process itself, rather than once a refusal is given and a dispute has arisen.
This has implications not only for employers, but also for the lawyers advising them. It is particularly relevant to legal practices, which may occupy both roles, advising clients and managing their own employees. Many law firms promote flexibility as part of their recruitment and retention strategy, yet requests are often managed through informal discussions, partner discretion and unwritten workplace norms. That approach sits uneasily with a statutory framework that now requires engagement, documented reasoning and decisions capable of withstanding external scrutiny where an employee has a statutory entitlement to make a flexible working request.
(1) Demonstrating reasonable business grounds
For advisers, this means encouraging clients to move towards treating requests as formal exercises requiring evidence-based reasoning. Employers should be able to identify the specific aspects of a role that require physical attendance, point to actual workflow, supervision or service delivery concerns and explain why alternative arrangements would not adequately address those issues.
The operational concerns that arise in legal practice provide a useful example. A request to work remotely several days each week may raise legitimate concerns where a junior lawyer requires close supervision, where a matter involves intensive team collaboration, or where client expectations require a consistent physical presence.
The cases do not suggest that these concerns are irrelevant. Rather, they indicate that such concerns will be far more persuasive when grounded in the actual role and the particular arrangement sought than when presented as a blanket justification for refusal.
This also raises practical difficulties. Decisions are often made prospectively, requiring employers to demonstrate that a requested arrangement is likely to create operational problems before those problems have actually arisen.
In practice, this may make alternative arrangements, trial periods and staged implementation particularly valuable tools, allowing employers to test concerns rather than rely solely on assumptions.
(2) Process, process, process
It is clear that process cannot be treated as an afterthought. But the statutory requirements in s 65A are more than compliance hurdles. Approached properly, each step is also the mechanism by which an employer generates the evidence that will sustain its decision if challenged.
The consultation record, the alternatives explored and the documented consideration of the employee’s circumstances are the materials from which a defensible refusal is built.
Consultation should involve genuine discussion about what the employee is seeking and why. Attempts to reach agreement should include consideration of whether part of the request can be accommodated. Alternative arrangements should be actively explored, including trial periods, structured work-from-home arrangements or attendance requirements linked to particular matters or responsibilities.
Consideration of the consequences of refusal should be directed to the employee’s actual circumstances and should be capable of being demonstrated if later challenged.
If consultation occurs, alternatives are discussed and employee impacts are considered, employers should ensure those matters are recorded at the time.A step that cannot later be demonstrated may as well not have occurred.
Further reform on the horizon?
The move towards more generous flexibility arrangements is becoming clearer, particularly in light of Victoria’s proposed Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic), introduced in June 2026.
If ultimately enacted, and if it survives foreshadowed constitutional challenges, the Bill would create an enforceable right to work from home up to 2 days per week where the arrangement is reasonable (and where the Fair Work Act regime would not apply to the employee), effectively imposing a reverse onus requiring employers to justify a refusal based on one of the limited prescribed grounds.
The Bill also proposes to impose additional obligations on employers compared with the Fair Work Act regime, requiring employers to bear the “reasonable” costs of enabling employees to work from home, including by funding equipment, software and remote access costs.
While the legislation would not apply to WA-based employees, it is nevertheless worth watching. Victoria would become the first jurisdiction to test how such a right operates in practice, and WA may ultimately benefit from that experience before considering comparable reforms.
Conclusion
Employers have not lost the ability to refuse flexible work requests, but refusal is no longer solely a matter of managerial preference. Whether under the Fair Work Act or the MCE Act, a refusal must be the product of genuine engagement, supported by evidence specific to the employee, role and arrangement in question, and reached through the prescribed statutory process.
Recent cases suggest the most reliable source of that evidence is the employer’s own conduct, particularly where trial arrangements have been explored, and that the time to get a refusal right is before a decision is made.
