Requests for Flexible Work Arrangements: Why Employers Should Consider if it is a Valid Request
A recent Fair Work Commission decision, Anna Kokavec v James Cook University [2026] FWC 3493, reminds employers to carefully consider requests for flexible working arrangements. The case highlights the importance of employers considering whether an employee has made a valid request under section 65 of the Fair Work Act 2009 (Cth) (Fair Work Act).
For employers considering requests that rely on medical conditions or disabilities, this decision offers useful guidance on assessing whether the statutory requirements have been met.
The Background
Dr Kokavec (the employee), a senior lecturer employed by James Cook University (JCU), sought approval to perform her work remotely from the Sunshine Coast from home for 12 months. She relied on section 65 of the Fair Work Act.
JCU declined the request. It maintained that a significant proportion of the role involved student-facing duties that required on-campus presence and advised that a fully remote arrangement would impose operational difficulties and additional costs. Despite this, JCU proposed an alternative arrangement of reducing the employee’s employment to a part-time fractional appointment of 0.4 FTE, which the employee declined.
The employee submitted a further request to JCU. The request again detailed that the employee was seeking an arrangement where she could perform her role remotely from the Sunshine Coast for 12 months, save for 2 weeks of each semester and during orientation week. The employee wrote in her request that the arrangement would assist her to manage “physical and mental health symptoms (associated with burnout)”.
JCU declined the employee’s request.
The employee subsequently lodged a dispute with the Fair Work Commission seeking orders requiring JCU to grant the requested flexible working arrangement and to declare that JCU’s grounds for refusal are not reasonable business grounds.
The Key Issue: Was the Request Validly Made?
In this decision, the Commission did not need to determine whether JCU had reasonable business grounds to refuse the request.
Instead, Deputy President Butler found that the employee’s request was not validly made under section 65 of the Fair Work Act. As the request was not validly made pursuant to section 65 of the Fair Work Act, the Commission had no power to make orders pursuant to section 65C of the Fair Work Act.
The Commission confirmed that a valid request that relies on one of the circumstances in section 65(1A) of the Fair Work Act must:
- Be made by an eligible employee;
- Be in writing;
- Be one where the circumstance under section 65(1A) as a matter of fact exists in respect of the employee at the time the request is made;
- There must be a nexus between desire for changed working arrangements and the circumstance that exists;
- The required ‘reasons for change’ need to identify the relevant circumstance in section 65(1A) and explain how the proposed changed working arrangements relate to that circumstance.
Why the Request Failed
Although the employee stated in her request that she had a disability and sought to work from home, the Commission found that she did not adequately explain in her written request:
- What her symptoms were;
- How physical attendance would exacerbate them; or
- Why working remotely would address her symptoms.
The Commission also held that merely asserting a disability is not enough. Employees must articulate, within the request itself, how the proposed arrangement accommodates a disability, and how the proposed working arrangement interacts with the claimed disability.
Deputy President Butler observed that the statutory validity requirements are not onerous, but when an employee is relying on the circumstance of disability, the employee has to inform the employer of how their proposed flexible work arrangements relate to their disability.
As the Commission concluded:
If an employee does not expressly articulate, on the face of their written request, how their disability interferes with their ability to work in the absence of the flexible working arrangements, then the validity requirements are not met.
Employer Takeaways
This decision is likely to be welcomed by employers because it confirms that a request for flexible work arrangements is not valid simply because an employee thinks their personal circumstances warrant flexible working arrangements.
When reviewing a request, employers should consider:
- Has the employee identified a qualifying circumstance under section 65 of the Fair Work Act?
- Is there a clear explanation of why the employee requires the proposed arrangement?
- Is there a direct connection between the qualifying circumstance and the change sought?
- Are the reasons sufficiently detailed to allow the employer to properly assess the request?
- If a disability is relied upon, does the request adequately explain how the proposed flexible work arrangement relates to the employee’s disability?
How HintonFlynn Legal Can Help
Requests for flexible working arrangements can be a source of disputes in the workplace, particularly when the request made does not meet the statutory requirements.
HintonFlynn Legal helps employers to:
- assess the validity of requests for flexible work arrangements;
- respond to the request and comply with their obligations under the Fair Work Act;
- identify reasonable business grounds that may warrant proposing alternative arrangements or refuse the request
- defend Fair Work Commission disputes.
If your business needs to respond to a request for flexible working arrangements, obtaining advice before responding can significantly reduce legal risk and improve prospects of resolving the matter constructively.
