Flexible working arrangements are now a permanent feature of the modern workplace. Since amendments to the Fair Work Act 2009 (Cth) (FW Act) came into effect in 2023, employers are receiving more requests for changes to hours, patterns and location of work, including increasingly ambitious requests for permanent remote work.
A recent Fair Work Commission (FWC or the Commission) decision, Kellie Fitzpatrick v University of New South Wales [2026]FWC 677 (Fitzpatrick Decision), is a timely reminder that while employees may have a statutory right to request flexible work, that right is not unlimited. Importantly, not every request made by a parent or carer is protected by the FW Act, and not every request needs to be accommodated.
The Fitzpatrick Decision provides useful guidance for employers on when a flexible work request is valid, when it can be refused, and why the link between the employee’s circumstances and the flexibility sought matters.
Who Has the Right to Request Flexible Work?
Section 65 of the FW Act gives certain employees a right to request flexible working arrangements. To be eligible, an employee must generally have at least 12 months of service, or be a long‑term regular casual
with a reasonable expectation of ongoing employment.
The employee must also fall within one of the categories listed in section 65(1A), including where they are:
- A parent, or have responsibility for the care, of a child who is school age or younger
- Pregnant
- A carer within the meaning of the Carer Recognition Act
- A person with a disability
- Aged 55 or older
- Experiencing family or domestic violence
- Providing care or support to an immediate family or household member experiencing family or domestic violence
The request must be made in writing and set out both the change sought and the reasons for the request.
However, eligibility alone is not enough. The FW Act is clear that the employee must be seeking the change because of their qualifying circumstance. This requirement is critical and is often misunderstood.
The Importance of the “Because Of” Link
A recurring issue in flexible work disputes is the assumption that if an employee falls within a protected category, any request they make is automatically covered by section 65. That is not the case.
There must be a causal connection between the employee’s circumstances and the flexible arrangement they are seeking. The flexibility must be needed to address the circumstance relied upon, not simply be convenient or desirable for other personal reasons.
This was the central issue in the Fitzpatrick Decision.
The Fitzpatrick Decision: A Useful Reminder for Employers
Ms Fitzpatrick was the parent of a young child and had an existing flexible work arrangement. She worked part time, with two days from home and one day on campus. The Commission accepted that this arrangement adequately met her childcare needs.
Ms Fitzpatrick later requested to work fully from home on an ongoing basis. The reason for the request was to enable her family to move interstate so her partner could pursue better career opportunities and improve his health and wellbeing.
While these reasons were understandable, the Commission found that the request was not made because of Ms Fitzpatrick’s parental responsibilities. Her parenting role remained based in Sydney, and her childcare needs were already being met by her existing arrangement. Any future childcare issues arising from a potential interstate move were speculative and uncertain.
The Commission described the connection between the parental circumstance and the request as tenuous. Importantly, the Commission held that a request cannot be made because of circumstances that do not yet exist.
As a result, the Commission found that the request was not a valid section 65 request at all. This meant the employer was not required to comply with the procedural obligations under the FW Act, and the Commission had no power to arbitrate the dispute.
The key takeaway is this: The key takeaway is this: sympathetic or compelling personal reasons do not automatically engage the statutory right to request flexible work. The request must be grounded in the qualifying circumstance itself.
When Can an Employer Refuse a Flexible Work Request?
Where an employee makes a valid section 65 request, employers must follow a specific process. This includes:
- Discussing the request with the employee
- Genuinely trying to reach agreement, including considering alternative arrangements
- Considering the consequences of refusal for the employee
- Responding in writing within 21 days
An employer may only refuse a valid request on reasonable business grounds.
What constitutes reasonable business grounds will depend on the circumstances of the business and the role, but commonly includes:
- The arrangement would be too costly
- There is no capacity to change the working arrangements of other employees
- It would be impractical to reorganise work or hire additional staff
- The arrangement would result in a significant loss of efficiency or productivity
- The arrangement would have a significant negative impact on customer service
The test is not whether the employer could make the arrangement work in theory. The question is whether there are legitimate operational reasons why the arrangement cannot reasonably be accommodated.
It is also important to note that if a request is not a valid section 65 request, as in the Fitzpatrick case, the employer is not required to establish reasonable business grounds at all.
The Commission’s Role and Why Process Matters
Since the 2023 amendments, the Fair Work Commission has the power to deal with disputes about flexible work requests, including through arbitration in some cases.
However, the Commission’s power only arises where there is a valid request under the Act. If the request does not meet the threshold requirements, including the “because of” link, the Commission has no jurisdiction to intervene.
Where a valid request exists, employers who fail to follow the required process, or who cannot substantiate reasonable business grounds, risk having the Commission step in and impose an outcome.
This makes careful assessment and documentation critical.
Practical Tips for Employers
The Fitzpatrick decision highlights several practical lessons for employers:
- Assess validity first: Do not assume every request engages section 65. Check service, eligibility category, and whether the request is genuinely made because of that circumstance.
- Look for the causal link: Ask whether the flexibility sought actually addresses the qualifying circumstance. If the request is driven by lifestyle preference, convenience, or a third party’s circumstances, the statutory right may not apply.
- Have meaningful discussions: Where a request is valid, engage early and genuinely with the employee. Exploring alternatives or trial arrangements can often resolve issues without escalation.
- Document your reasoning: Whether approving or refusing a request, keep clear records of discussions, considerations and the basis for your decision. This is essential if the decision is later challenged.
- Use clear policies: A well drafted flexible work policy helps manage expectations and promotes consistency. Policies should explain how requests are assessed and reinforce the need for a link between the request and the qualifying circumstance.
Flexible work is here to stay, but it is not an unfettered entitlement. The right to request flexibility under the Fair Work Act is carefully defined and deliberately limited.
The Fitzpatrick decision is a strong reminder that the law protects genuine needs arising from specific circumstances, not general lifestyle choices. For employers, understanding where that line is drawn is key to responding confidently, lawfully and fairly to flexible work requests.
Need help assessing a flexible work request? Considering a Flexible Work Policy (or amending your current policy)? In a dispute regarding a flexible work request?
Get in touch!
If you’ve got any burning questions about these changes or you’re not sure how they’ll impact your business, reach out to our team by email hello@flawlesshr.com.au
