Flexible Work Arrangements and the Right to Refuse

Flexible work arrangements have become an important, if not expected, part of workplace arrangements and often an integral part of employment conditions. In order to navigate requests for flexibility, employers should be aware of its rights and obligations and which employees may not be eligible for these arrangements.

Who is eligible for flexible work arrangements?

The Fair Work Act 2009 (Cth) (‘FWA’) stipulates that an employee will be entitled to request a change in working arrangements if it meets employment conditions and has a legislated circumstance that applies.

Employment conditions:

• Full-time and part-time employees: the employee has completed at least 12 months of continuous service immediately before making the request
• Casual employees: the employee has been a regular casual employee for a continuous period of at least 12 months immediately before making the request, and the employee has the reasonable expectation of regular employment.

List of applicable circumstances:

• the employee is pregnant;
• the employee is the parent, or has responsibility for the care, of a child who is of school age or younger
• the employee is a carer
• the employee has a disability;
• the employee is 55 or older;
• the employee is experiencing family and domestic violence;
• 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.

The request must be made in writing and details the reasons for the request.

An employer may lawfully refuse a request for flexible work arrangements where there are reasonable business grounds.

A recent decisions of the Fair Work Commission illustrates when an employer may refuse a request based on reasonable business grounds.

Relevant case:

In the case of Vanessa Duncan v Coal & Allied Mining Services Pty Ltd [2026] FWC 1427, a haul truck driver at an open-cut coal mine in New South Wales sought flexible working arrangements upon returning from parental leave. Before her leave, she worked full-time on a rotating roster of 12.5-hour day and night shifts.

To manage her caring responsibilities for her baby, she requested:

• shorter shifts (10.5 hours), and
• a permanent day-shift-only arrangement.

The employer initially approved a temporary three-month day-shift arrangement to support her transition back to work. However, it refused to make the arrangement permanent and proposed a job-share arrangement involving reduced hours but continued rotation between day and night shifts. This was rejected by the employee.

The employer argued that the refusal was reasonable based on operational grounds in that the arrangement would:

• significantly disrupt operations and reduce efficiency
• create safety and supervision risks
• increase reliance on overtime and labour hire
• be difficult to sustain if other employees made similar requests
• Would result in a projected loss of $1.8 million over a 12 month period

The Fair Work Commission found that the employer had reasonable business grounds to refuse the request based on the following evidence:

• It would be impractical to restructure the workforce to accommodate a permanent day-only role.
• Recruiting or reallocating workers to cover night shifts would be challenging.
• There were legitimate safety concerns with altering roster structures.
• The financial and operational impacts could become significant, particularly if similar arrangements were requested by others.

Importantly, the Commission found that both the employee’s request for flexible work arrangement, and the employer’s refusal, was reasonable based on the circumstances of each. As a result, “fairness” between the parties was considered a neutral factor.

Key takeaways for employer:

1. Employees have a right to request—but not an automatic right to receive—flexible work.
2. Reasonable business grounds can include operational, financial, and safety factors.
   3. Employers should engage constructively and consider alternatives.
   4. Each case turns on its facts.

Flexible work requests often involve genuine and competing needs. This decision highlights that even where an employee’s circumstances are compelling, a refusal may still be lawful if it is grounded in legitimate business considerations.

If you have any questions about workplace arrangements please contact the Workplace Relations Team:

📞 (02) 6175 5900
📧 workplace@mba.org.au