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Small businesses must be aware of recent Fair Work changes to flexible work arrangements, the small business advocate has cautioned.
FWC decision has implications for SMEs, warns COSBOA
06 May 2025
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8 minute read
A recent decision by the Fair Work Commission Full Bench has overturned an employer’s decision to refuse a part-time flexible work request, putting all SMEs on alert.
The commission overturned the decision solely because the business had failed to follow one of the procedural requirements in the Fair Work Act 2009.
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The Council of Small Business Organisations Australia warned small businesses to ensure they met certain prerequisites before refusing any flexible work requests, to avoid having the commission overturn a decision.
Prerequisites outlined by COSBOA included discussing requests directly with employees, attempting to reach a compromise, carefully considering and documenting a refusal and how it would impact the employee and identifying reasonable business grounds.
COSABOA added: “Most importantly, ensure your written response to the employee clearly addresses all these points, demonstrating you’ve met your obligations under the FW Act.”
In this case, a teacher at a small private school requested to return part-time for two terms in 2025 as she transitioned back into her role from parental leave.
The teacher’s reasoning for the request was to accommodate parenting responsibilities until childcare arrangements were finalised, which the school refused on the basis that there would be too many operational impacts, such as increased costs, additional workload on other staff and reduced leadership capacity.
According to the case, these refusal grounds were at first satisfactory and reasonable to the Commissioner and were not overturned to appeal.
However, the school was found to have made two procedural mistakes, according to COSBOA.
“While responding after 82 days (instead of the required 21 days) did not invalidate their refusal, their failure to address in writing how the refusal would impact the employee proved fatal,” COSBOA said.
“The Full Bench determined that by not addressing this impact in its written response, the employer had not properly considered how the refusal would affect the employee – a mandatory prerequisite for refusing a flexible work request under the Fair Work Act.”
From this, the Commissioner said the employer, the school, “was not entitled to refuse the request” and ordered the part-time arrangement be granted, despite originally acknowledging reasonable grounds for refusal.
COSBOA said this case should act as a crucial reminder for all small businesses when refusing employee requests.
“This highlights the critical nature of getting the process right the first time, as small businesses may not get a second chance to correct procedural errors,” it said.
“For small businesses where every staff member plays a crucial role and resources are limited, having the FWC mandate staffing arrangements against your operational needs could be particularly challenging.”
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