Recent decisions of the Fair Work Commission – Flexible working arrangements

Read the full series:

Part 2: Recent decisions of the Fair Work Commission – Portable long service leave

Part 3: Recent decisions of the Fair Work Commission – Annualised salary arrangements

Kliffen v Reapit Employment Services Pty Ltd [2026] FWC 1766 reinforces that employers must identify and substantiate genuine, evidence‑based reasonable business grounds when refusing flexible work requests - broad assertions about “culture” or collaboration will not suffice.

Overview of the case

A part-time employee worked remotely four days per week pursuant to a post-parental leave flexible working arrangement. Over time, the employer introduced an “office-first” model across the business, requiring employees to attend the office two days per week.

In response to the employer’s direction, the employee made a formal request for flexible working arrangements, citing long commute times (over one hour each way), caring responsibilities for a young child with additional needs, and safety concerns linked to late finishes. The employee proposed alternatives, including reduced office attendance and adjusted start times.

Ultimately, the dispute turned on whether the employer could refuse the request on “reasonable business grounds”, which included team cohesion and workplace culture, operational efficiency and productivity as well as resourcing and consistency.

The FWC closely scrutinised the employer’s stated business grounds and found them only partially persuasive, ultimately imposing a balanced outcome under its expanded powers to arbitrate flexible work disputes.

The FWC determined the employee could continue to work from home but was required to attend the Sydney office one day each fortnight on a day they choose, with flexibility to vary this arrangement by agreement. On office days, the employee could start as late as 10:30am, but if they worked fewer hours that day, they were required to make up the time across the fortnight within the span of ordinary hours under the award.

The legal framework

Section 65 of the Fair Work Act 2009 gives eligible employees a right to request flexible working arrangements. This includes parents of young children and carers.

Most employers understand that refusal must be based on “reasonable business grounds”.

To lawfully refuse a request for flexible working arrangements, an employer must:

• genuinely consult and attempt to reach agreement
• consider the consequences of refusal for the employee
• genuinely explore alternative working arrangements to accommodate the employee where possible
• only refuse on reasonable business grounds, and
• provide a written response with detailed reasons within 21 days.

Historical arrangements matter more than policy resets

The FWC found the employee had worked remotely for years with no evidence of performance issues. The employer’s shift to an “office-first” model was driven by cultural surveys and engagement concerns, which were legitimate objectives, but not necessarily sufficient to override an established working arrangement.

The FWC has consistently placed weight on whether a role can be performed remotely and whether an employee has demonstrated effective performance in that arrangement.

General statements about culture, collaboration or engagement will not carry much weight unless supported by evidence of actual operational impact.

Caring responsibilities change the balance

The FWC also found this was not a preference-driven request. There were clear concerns relating to the employee’s:

• caring responsibilities (including one child with additional/complex needs)
• significant commute, and
• school/daycare responsibilities.

The FWC has been clear, there must be a nexus between the request and the employee’s protected circumstance, but once that link is established, an employer is required to justify any refusal with strong evidence.

Here, the practical effect of office attendance was significant.

Changing your position is high risk

The employer was also inconsistent in their requirement for office attendance, and this undermined the strength of the employer’s claim that office attendance was essential. If a business can operate under flexible conditions for a period, it becomes harder to argue that it cannot continue doing so.

Recent FWC decisions show a consistent pattern

Employers succeed where they can demonstrate specific, evidence-based operational impacts (e.g. safety, regulatory coverage, inability to redistribute work) and genuine attempts to reach a compromise.

Employers fail where a refusal is loosely based on policy, preference or generalised assumptions, especially where the employee has a proven track record of performance under the requested arrangement.

What businesses should learn from this

Generic business reasons won’t suffice
Employers need specific, evidence-based reasons to refuse flexible work requests. Broad claims about “culture”, collaboration or efficiency will carry little weight without supporting evidence.

Assess requests on an individual basis
Blanket return‑to‑office policies are risky. Each request must be genuinely considered on its own merits and circumstances.

Caring responsibilities carry significant weight
The FWC will consider family and caring obligations, especially where supported by evidence.

Be prepared to justify operational impacts
Assertions about productivity loss or team impact must be clearly articulated and substantiated, not assumed.

Consider and document alternatives
Employers should explore workable compromises (e.g. trial periods, hybrid or reduced attendance models) before refusing requests outright.

Consistency does not mean uniformity
Treating employees “consistently” does not justify identical outcomes. Fairness may require different arrangements for different circumstances.

Flexible work disputes will be closely scrutinised
The FWC will actively test the reasonableness of employer decisions, especially around remote work.

How the Victorian Chamber can assist

With extensive experience in workplace relations, the Victorian Chamber of Commerce and Industry can provide valuable support to employers navigating requests for flexible working arrangements. If you need assistance, we strongly encourage to reach out to our Workplace Relations Advice Line on 03 8662 5222.