In a recent decision, the Fair Work Commission (“FWC”) considered an employee’s request to work remotely full-time to accommodate her responsibilities as a parent of two young children. The employee had a long history of remote work with the employer and sought to continue working from home to manage school drop-offs and pick-ups.

The employer refused the request, citing its Hybrid Working Policy, which required employees to attend a corporate office at least two days per week. The employer also referred to a clause in the applicable enterprise agreement which referred to expectations relating to hybrid work. When refusing the request, the employer did not give reasons for the refusal as is required by the Fair Work Act 2009 (Cth) (the “FW Act”).

Findings

The FWC found that the employer had failed to comply with several key procedural requirements under section 65A of the FW Act. This included:

• No timely written response: the employer did not respond to the request within the 21-day timeframe.
• No genuine discussion: the employer did not engage in meaningful discussions with the employee before refusing the request.
• No consideration of consequences: the employer failed to consider the impact of the refusal on the employee
• Insufficient reasons: the employer did not explain how the refusal was based on reasonable business grounds.

Key lessons for employers

This case is an important reminder that in receiving and responding to a flexible working request, an employer must follow the process as set out in section 65A of the FW Act. Specifically, employers must:

• respond in writing within 21 days;
• genuinely discuss the request with the employee;
• try to reach an agreement;
• consider the consequences of refusal; and
• provide detailed reasons if refusing the request, including the reasonable business grounds and how they apply.

Failure to meet these procedural requirements can invalidate the employer’s refusal, even if they may have a sound basis to refuse the request.

Further to this, the business grounds provided in a refusal must be specific and substantiated. In this case, the employer cited general benefits of in-office attendance, such as collaboration and access to resources. However, the FWC found that these benefits were not quantified or shown to be significant as the employee’s role had been successfully performed remotely for years and her performance ratings were high, and deadlines consistently met. This demonstrates that generalised claims about productivity and team cohesion are not enough—employers must provide concrete evidence of how the requested arrangement would negatively impact the business.

The case also highlighted that internal policies do not override statutory obligations and that employers must assess each request on its merits and cannot rely solely on blanket policies. In addressing the employer’s argument that the enterprise agreement required hybrid workers to the attend the office, the FWC noted that clause 20 of the enterprise agreement recognised the right to request flexible work under the NES and that this was separate to and not in any way inconsistent with the hybrid working arrangement clause of the enterprise agreement. This is because the enterprise agreement could not detrimentally affect the employee’s statutory rights.