If you are still treating flexible work requests as a policy issue rather than a legal risk, you may be exposed.
Nearly three (3) years after the Fair Work Commission was given power to arbitrate disputes about refused flexible work requests, the message is becoming clearer.
Employers cannot rely on broad statements about culture, precedent or “the benefits of being in the office”.
They must demonstrate genuine, evidence-based, reasonable business grounds.
The Fair Work Commission reinforce that shift in Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524.
For HR teams and Employers, these cases are important reminders that flexibility is no longer a discretionary benefit. It is a statutory right with enforceable consequences.
The Legal Framework
Under the Fair Work Act 2009, certain employees may request flexible work arrangements if they have at least 12 months’ service and fall within recognised categories, including:
- Parents of young children
- Carers
- Employees with a disability
- Employees aged 55 or older
- Pregnant employees
- Employees experiencing family or domestic violence
The requested change must be connected to those circumstances. It cannot simply reflect personal preference.
An employer may only refuse a request on “reasonable business grounds”. If refused, the employee can escalate the matter to the Fair Work Commission for arbitration.
The Commission now has the power to determine whether the refusal was justified and, if not, to order the employer to grant the request.
Aoyama v FLSA Holdings Pty Ltd (2025) FWC 524
In Aoyama, the employee sought to work from home one additional day per fortnight to assist with caring for his infant child.
The employer refused. Its reasons included:
- A contractual requirement for office attendance
- Concerns about distraction due to childcare responsibilities
- Alleged client dissatisfaction
- The risk of setting a precedent
The Commission were not satisfied that these reasons were reasonable business grounds.
Key Findings
- Contracts are not determinative
The existence of an office attendance clause did not override the statutory flexible work regime. The legislation may require deviation from standard contractual arrangements. That is the Commission are not afraid to apply a case by case basis in certain circumstances. - Speculation is not evidence
There was no persuasive evidence of reduced productivity or client impact. Generalised concerns were insufficient. - Precedent is not a reasonable business ground
The Commission rejected the argument that granting the request would create an unmanageable precedent. Flexible work requests are inherently personal and fact specific.
The refusal failed because the employer could not demonstrate actual, evidence-based operational harm.
What These Cases Tell Employers
Across most decisions a theme is emerging:
- Policies Are Not Enough
Hybrid policies or “return to office” directives cannot automatically defeat a statutory request.
- Evidence Matters
Employers must demonstrate real operational impact, not theoretical concerns.
- Individual Circumstances Are Central
The Commission will examine the specific employee’s situation, performance history and the practical consequences of refusal.
- Engagement Is Critical
Employers must genuinely consult and explore alternatives before refusing.
Practical Takeaways for HR teams and Employers
For HR teams and managers assessing requests:
- Document the operational impact with specificity.
- Avoid generic references to culture or collaboration.
- Consider whether the role has previously been performed remotely.
- Engage in meaningful discussion before issuing a refusal.
- Assess whether modified or trial arrangements could address concerns.
The risk is no longer reputational. It is legal and enforceable.
Flexible work disputes are becoming a real litigation stream before the Commission. Employers who treat requests as administrative inconveniences rather than statutory rights are increasingly being corrected.
Also check out the Employment Law Health Check which can help understand risks around flexible work arrangements.
Feel free to reach out on 07 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
