Handling Flexible Work Arrangement Requests

In a recent decision, Tracey Smith v Costco Wholesale Australia Pty Ltd [2025] FWC 2691, the Fair Work Commission (FWC) reaffirmed the importance of evidence when employees seek flexible working arrangements. 

The FWC dismissed the employee’s request after she failed to substantiate the grounds for her request.

Background

The employee had been on a flexible roster since 2018, working shifts from 6am to 2.30pm on Monday, Tuesday, Wednesday and Thursday each week, and 6am to 12.30pm on Sundays. Earlier this year, she sought to compress her hours into four days by starting work two hours earlier each morning and taking Thursdays off.

She made this request under section 65 of the Fair Work Act 2009 (FW Act), citing two grounds:

• caring responsibilities for her grandchild under 12 months of age; and
• being over 55 years of age.

Employer Response

The employer refused the request, citing that a 4am start would create safety risks due to the absence of supervision at that time and that longer shifts would also trigger additional overtime costs.

FWC’s Findings

In the subsequent dispute before the FWC, the employee raised that her partner had suffered a serious workplace injury and required support, and identified this as a further reason for her request. However, Commissioner Stephen Crawford found:

• The employee provided no medical evidence showing that she had carer responsibilities for her partner within the meaning of the Carer Recognition Act 2010;
• She had not shown that her flexible work request was “because of” her age, as required under section 65 of the FW Act; and
• While her grandson was a member of her immediate family, the FW Act only grants flexible work rights to parents or guardians responsible for a child—not to grandparents (unless they are the primary carer).

Commissioner Crawford concluded that the employee had not made a valid request for flexible working arrangements under the Act. While he acknowledged her reasons were understandable, he encouraged her to engage with her employer to explore alternative working options.

Takeaways for Clubs

This case is a useful reminder for member clubs to handle flexible work requests with both procedural care and legal awareness. If an employee submits a flexible working arrangement request, the following should be considered:

1. Evidence matters
Employees must provide sufficient information (and in some cases supporting documentation, such as medical certificates) to demonstrate that their request meets the FW Act criteria.

2. Grounds for requests are limited
Under the FW Act, employees can request flexible arrangements only if they meet specific circumstances—such as being a parent of a school-aged child or younger, are a carer, are 55 or older, are pregnant, has a disability, or is experiencing family or domestic violence. Clubs should check whether the claimed grounds are legally valid and can request reasonable evidence from the employee to ensure the grounds of their request are legitimate.

3. Timely responses are essential
Under section 65A of the FW Act, employers are required to respond in writing within 21 days. Even if the request is refused, failure to meet the deadline can expose the club to risk of having breached the FW Act.

4. Clear reasons for refusal are required
If a club refuses a request, it must provide clear, reasonable business grounds (e.g. safety risks, additional costs or operational impacts). Member clubs should refer to section 65A of the FW Act for further information on ‘reasonable business grounds’ for refusing a request.

5. Engage in good faith
Even when refusing, clubs should consider alternative arrangements or compromises. Demonstrating flexibility and consultation helps minimise disputes and supports a positive workplace culture.

Member clubs seeking guidance on flexible work arrangement requests, or any other employment matters, can contact the ClubsNSW Workplace Relations Team on 1300 730 001.