You may be aware that the Fair Work Act was amended in late 2022 to clarify the circumstances that must exist for an employee to have the right to request a flexible working arrangement. Late last year the Fair Work Commission had to deal with a dispute about such a request.

The Commission found in favour of the employer. The decision is worth a read to learn from the employer’s approach and the Commissioner’s reasoning. A summary of the key elements of the decision follows with a link to the full decision if you wish to read it.


The circumstances that must exist for the employee to have the statutory right to request a flexible work arrangement are if the employee:

  • is pregnant;
  • has responsibility for the care of a child who is of school age or younger;
  • is a carer for someone who needs care because they have a disability, a medical condition or illness, or are frail and aged;
  • has a disability;
  • is 55 or older;
  • is experiencing family and domestic violence; or
  • 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.

The employer may only validly refuse the request on reasonable business grounds.


The employee requested to work from home 100% of the time due to having the care of a school aged child every other week and he suffers from a medical condition (irritable bowel).

The employer responded pragmatically, providing the employee with options, all of which required the employee to return to the office – 20% in the office until the end of September, and then 40% in the office from 2 October 2023 – and allocate his office days to the week that he would not have custody of his son.

The worker rejected the offer and sought to work 100% from home, and applied to the Fair Work Commission to resolve the dispute.

The Commissioner found against the employee and the findings included that:

  • the Commissioner did not consider the bowel condition a disability notwithstanding it an inconvenience;
  • it is desirable for there to be face to face contact within the workforce team;
  • a face to face presence would allow for observation, interaction and (if necessary) coaching to improve [the worker’s] productivity and provide him with greater support; and
  • The worker’s knowledge and experience could be more easily accessed by the less experienced on a face to face basis.

The Commissioner concluded that the employer’s reasons for refusing the worker’s request were based on reasonable business grounds.

This case provides good guidance on how to deal with these types of requests. If you are likely to receive such a request then I recommend you read the full ruling.

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