The Fair Work Commission Orders Employers to Accept Flexible Working Arrangement Requests

The Fair Work Commission (the FWC) has made several recent orders requiring an employer to implement a flexible work arrangement (FWA) following a refusal of an employee’s request under “reasonable business grounds’’. In making these orders, the FWC determined that the objectives of the Fair Work Act 2009 (Cth) (the Act) and corresponding National Employment Standards (the NES) supersede any written terms contained in the employee’s contract or enterprise agreement.

The recent decisions of Kent Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524 and Anthony May v Paper Australia Pty Ltd [2025] FWC 799 demonstrate the FWC’s power to override an employer’s commercial considerations in relation to a FWA.

Requests for Flexible Working Arrangements

Under section 65 of the Act, employees who have completed at least 12-months of continuous service may request a change in their working arrangements in certain circumstances, such as pregnancy, parent or carer responsibilities or disabilities.

In accordance with the Act, an employer may refuse a request provided that certain requirements have been satisfied. These requirements include whether the employer has made a “genuine attempt to reach an agreement with the employee to accommodate their circumstances”, whether the employer has regard to the “consequences of their refusal of the FWA request on the employee”, and where the refusal of the FWA request is on “reasonable business grounds”.

“Reasonable business grounds” captures a variety of circumstances which may justify an employer’s refusal of a FWA, including cost, capacity, practicality and productivity considerations.

Kent Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524

In this decision, the employee, Mr. Kent Aoyama (Mr. Aoyama) made a formal FWA request to his employer, FLSA Holdings Pty Limited (FLSA Holdings) due to increased parent responsibilities. Informally, Mr. Aoyama had an agreement with FLSA Holdings to work from home on Tuesdays and Thursdays. In his formal FWA request, Mr. Aoyama sought to add an additional day to this informal arrangement and work from home an additional day each fortnight (the FWA Request). After meeting with Mr. Aoyama, FLSA Holdings refused his FWA Request on the basis that during Mr. Aoyama’s working hours he was expected to perform his contractual duties “without distraction”, including providing care for a young child. During this meeting, FLSA Holdings also raised several complaints they had received from clients concerning Mr. Aoyama’s performance whilst working from home, namely the disruption of baby noises whilst he took calls.

In arbitrating the dispute, Commissioner Sloan of the FWC considered FLSA Holdings’ refusal of Mr. Aoyama’s FWA request on the basis of “reasonable business grounds”. The FWC determined that FLSA Holdings had not provided compelling proof that there would be any material bearing on efficiency or productivity and ordered that FLSA Holdings accept Mr. Aoyama’s FWA Request. Commissioner Sloan also noted that FLSA Holdings’ argument that approving the FWA request would create an unfavourable precedent with the business was unconvincing, and that this argument failed to take into account the overriding purpose of the provision and therefore the circumstances of individual employees.

Anthony May v Paper Australia Pty Ltd [2025] FWC 799

In this decision, the employee, Mr. Anthony May (Mr. May), made a FWA request with his employer, Paper Australia Pty Limited (Paper Australia) to accommodate for his parent responsibilities. Mr. May previously had a 13-year informal arrangement with Paper Australia, which allowed him to work a flexible start and finish time one shift a week. However, in July 2024, Paper Australia informed Mr. May they were ending this informal agreement on the basis that it did not comply with the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024 (the Enterprise Agreement).

In August 2024, Mr. May made a formal FWA request which proposed adjustments to his rostered hours throughout the week, as well as a variation to his start and finish time on a Thursday. Paper Australia rejected Mr. May’s formal FWA request on the basis of “reasonable business grounds”, in particular, that it failed to comply with the Enterprise Agreement’s requirements regarding workers’ four-day week rotating rosters.

In making its decision, the FWC considered whether Paper Australia’s rejection of Mr. May’s FWA request on the basis of non-compliance with the Enterprise Agreement constituted “reasonable business grounds”. In rejecting Paper Australia’s argument, Commissioner Yilmaz noted that where there is any inconsistency between an enterprise agreement and the NES, the NES will prevail where it provides for a more beneficial term. Further, the FWC found that Paper Australia’s refusal of Mr. May’s FWA request was not based on “reasonable business grounds” and ordered that Paper Australia accept Mr. May’s FWA request.

Key Takeaways

These decisions demonstrate that where an employer’s refusal of a FWA request, on the basis of “reasonable business grounds”” must be sufficiently substantiated, including an adequate consideration of an individual’s circumstances.

Moreover, where there is inconstancy between an employee’s employment agreement or any relevant enterprise agreement and the NES, the NES will prevail where it provides for a more beneficial term, and therefore, any refusal of a FWA request on this basis will not be substantiated.

If you have any questions about these cases and what these decisions could mean for you or your business, please do not hesitate to contact Nick Stevens, Josh Hoggett, Evelyn Rivera or Ayla Hutchison.