Flexible work is now an expected part of Australian employment. But “expected” doesn’t mean “mandatory.” The Fair Work Act gives certain employees the right to request a flexible work arrangement — not the right to receive one automatically.
Here’s who can ask:
When they ask, they must have a legislated reason:
If all these boxes tick, the employee is entitled to make a request in writing. Your obligation is to consider it seriously. Your right is to refuse it — but only if you have reasonable business grounds.
This is where employers often slip up. They refuse based on gut feeling, or because “we’ve never done that before.” The Fair Work Commission won’t accept that. You need reasons that hold up.
In mid-2026, the Fair Work Commission issued a decision that sets a clear, practical framework for what “reasonable business grounds” actually means.
Vanessa Duncan was a full-time haul truck driver at Coal & Allied’s open-cut coal mine in NSW. Before her parental leave, she worked rotating 12.5-hour day and night shifts on a roster system.
When she returned from leave, her situation had changed: she now had a baby and needed flexibility to manage childcare. She requested:
The employer initially approved a temporary 3-month trial of day shifts to support her transition back. But when the trial ended, the employer refused to make it permanent. Instead, they offered a job-share arrangement with reduced hours but continued rotation between day and night shifts. The employee rejected that.
The employer’s refusal was based on:
The Commission found the employer’s refusal was lawful. Here’s why:
1. Operational impracticality was proven. It wasn’t speculation — the employer demonstrated that restructuring to accommodate a permanent day-only role would require recruiting or reallocating workers to cover night shifts, which was genuinely challenging.
2. Safety concerns were legitimate. The roster changes had real safety implications for a hazardous workplace (open-cut mining). The Commission accepted that these weren’t invented excuses.
3. Financial and operational impacts were significant. $1.8 million over 12 months is substantial. The Commission didn’t dismiss this as “just the cost of doing business.” It was a real, material cost.
4. The decision was balanced. The Commission acknowledged that the employee’s circumstances were genuinely compelling — she had a young child and a legitimate need for day-only work. But compelling personal circumstances don’t override reasonable business grounds.
The key finding: Both the employee’s request and the employer’s refusal were found to be reasonable, based on the circumstances of each. Fairness between the parties was treated as neutral. The employer was not required to sacrifice operational and financial viability to accommodate the flexible work arrangement.
Reasonable business grounds can include:
What doesn’t work:
The process that counts:
If you receive a flexible work request, follow this framework:
Step 1: Confirm eligibility
Check that the employee meets the service requirement (12 months) and falls into one of the legislated circumstances. If they don’t, you can refuse on that ground alone.
Step 2: Understand the request
Get clarity on exactly what the employee is asking for. Partial work-from-home? Reduced hours? Different schedule? Different location? The more specific, the easier to assess.
Step 3: Explore alternatives
Job sharing, temporary trial periods, partial arrangements, different shift schedules — don’t jump straight to refusal. If you can accommodate something close to what they’ve asked, that’s usually safer than an outright no.
Step 4: Assess your actual business impact
Not theoretical impact. Real impact:
Step 5: Document your decision
Whatever you decide, write it down. If it’s yes, outline the arrangement, the trial period (if any), and how it will be reviewed. If it’s no, explain your business grounds clearly and specifically.
Step 6: Communicate
Have a conversation with the employee, then follow up in writing. They need to understand not just what you decided, but why.
Many employers believe that refusing a flexible work request is inherently risky — that the Fair Work Commission will always side with the employee’s personal circumstances.
The Duncan decision shows that’s wrong. The Commission is willing to uphold a refusal if it’s grounded in real, material business considerations. What the Commission won’t accept is a refusal based on inconvenience, assumptions, or gut feeling.
If you’ve ever thought, “We can’t do flexible work in this business,” that’s worth revisiting. You might be right. But if you are right, you need to know why — in terms the Fair Work Commission will accept. And if you can’t articulate those reasons clearly, you might be more flexible than you think.
If you refuse a flexible work request without reasonable business grounds, the employee can lodge a general protections claim (if they believe the refusal was for a prohibited reason like pregnancy or carer status) or pursue other remedies.
The Fair Work Commission can:
The Duncan case is actually reassuring: if your grounds are solid, you’ll likely prevail. But you have to do the work upfront.
Flexible work requests are common and will only increase. Your starting position shouldn’t be “no” or “yes” — it should be “let me assess this fairly based on our actual business impact.”
If you have genuine, material business grounds to refuse, you’re on solid legal footing. If you’re refusing out of habit or discomfort, you’re exposed.
The Fair Work Commission expects you to be thoughtful, not rigid. The Duncan decision shows they’ll back you up if you are.
Speak to an Employment Lawyer at Fair Work Centre
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