Return-to-office mandates can result in eligible employees making flexible working arrangement requests, particularly where there are existing arrangements at odds with the mandate. Managing flexible working arrangements is about more than just considering whether the request can be accommodated. It is also not limited to a technical exercise of identifying any “reasonable business grounds” to refuse a request. It requires careful consideration including an evidence-based assessment of an organisation’s needs and employee’s circumstances.
A failure to get the balance right may result in having a flexible working arrangement imposed by the Fair Work Commission (“FWC”). In a recent FWC decision, an employer was ordered to allow an employee to attend the office only one day a fortnight. The decision provides important guidance for employers navigating flexible working arrangement requests in the context of return-to-office mandates.
The employee’s request
The employee had worked entirely remotely as a part-time support specialist since 2016. Following a corporate acquisition in 2023, the incoming employer provided written assurances that the employee’s day-to-day working arrangements would not change. However, in mid-2024, the employer introduced a mandate requiring that all staff attend the office at least two days per week. This return-to-office mandate was designed to foster team cohesion, facilitate training, and support a broader organisational rebrand.
In response to the office mandate, the employee submitted a formal request for a flexible working arrangement seeking to:
continue working fully remotely; or
attend the office one day per fortnight (with a later start time on that day).
The employee’s request was made on the basis that she was caring for a child with diagnosed special needs who experienced severe anxiety, behavioural challenges and difficulty during morning school drop-offs. Because the commute to the office could take up to one and a half hours each way, the employee argued that attending the workplace under the proposed hours would severely disrupt both morning routines and evening family responsibilities.
The employer ultimately refused the request, citing “reasonable business grounds”. The employer argued that an exclusive work from home arrangement would result in a loss of efficiency, disrupt team cohesion, and violate the company’s obligation to apply fair and consistent working practices across the entire workforce.
The FWC’s main findings
The FWC accepted that the employer was undergoing a significant transition and acknowledged the genuine benefits of in-person collaboration. On this basis, it found that the employer did possess valid, reasonable business grounds to refuse a fully remote working arrangement.
However, the FWC emphasised that the existence of reasonable business grounds did not automatically justify refusing all proposed alternatives.
The FWC found that:
reasonable business grounds did not exist to refuse an arrangement for the employee to work in the office for one day a fortnight;
enforcing a blanket two-day office mandate for consistency was unfair;
fairness might require extending additional flexibility to individuals facing unique family circumstances; and
historical factors were relevant, with the FWC placing weight on the employee’s long history of remote work and the employer’s previous written promises that conditions would remain unchanged.
Ultimately, the FWC ordered that in addition to the employee being required to attend the office once a fortnight, to accommodate the difficult morning school drop-offs, the employee was permitted to start work on that in-office day as late as 10:30am, provided that any lost hours were made up over the rest of the fortnight.
Takeaways for employers
While this case was ultimately decided on the particular facts, there are some universal lessons for employers. In addition to following the steps required by the Fair Work Act 2009 (Cth) when responding to flexible working arrangement requests, employers should consider the following tips.
Avoid reliance on blanket mandates: consistency of treatment for all employees is not a reasonable business ground. The notion that “everyone has to come in” is inconsistent with the purpose of flexible working arrangements. Employers must actively engage with the substance of a flexible working arrangement request regardless of return-to-office mandates.
Substantiate business grounds: consider whether there is evidence to support the business grounds. These grounds must be linked to the role and operational circumstances. In this case, the employee’s immediate team was already distributed across multiple cities and, accordingly, reliance on in-office collaboration carried less weight.
Account for legacy arrangements: if acquiring a business, carefully review existing remote working arrangements. It is often difficult to relocate long-term remote workers into the office if they have established flexibility.
