Flexible work requests - when employee safety comes first

Flexible work requests are becoming increasingly common, but employers are not required to approve every request. Under s 65A and s 65B of the Fair Work Act 2009 (Cth) (FW Act), eligible employees may request flexible working arrangements. An employer may refuse a request where there are “reasonable business grounds” for doing so.

A recent decision of the Fair Work Commission in Mathews v Greater Shepparton City Council [2026] FWC 3351 confirms that work health and safety considerations can constitute reasonable business grounds for refusal.

The facts

Following incidents involving aggressive and threatening behaviour from members of the public, Greater Shepparton City Council reviewed the operation of its Visitor Information Centre. As part of that review, and following concerns raised by employees and the union, the Council implemented a requirement that two employees be present at all times while the centre was open.

The Applicant sought a flexible work arrangement that would allow her to work part of her Sunday shift from home before the centre opened and after it closed. The Council refused the request, relying on operational requirements and safety concerns.

Reasonable business grounds

The central issue was whether the Council had reasonable business grounds to refuse the employee's flexible work request under s 65A(3)(d) of the FW Act. Here, the FW Act permits an employer to refuse a request for flexible working arrangements where the refusal is based on reasonable business grounds, including where the proposed arrangement would have a significant impact on business operations.

In determining whether such grounds existed, DP Farouque referred to the Full Bench decision in Paper Australia v May [2025] FWCFB 224, noting that "reasonable business grounds" should be given their ordinary meaning and require a justification that is rational, sound and connected to the operational requirements of the employer's business.

The Council relied on two principal grounds:

1.    the need to roster employees consistently with the revised operating hours of the Visitor Centre; and

2.    the need to ensure two employees were always present at the Centre for health and safety reasons.

Both grounds were accepted by the Commission.

In relation to the first ground, DP Farouque considered it "entirely reasonable" for a public-facing facility to roster employees in accordance with its operating hours. The employee's proposal would have required her to work remotely before the Centre opened and after it closed, reducing the alignment between staffing and service delivery.

As to the second ground, the Commission accepted that the Council's requirement for two employees to be present at all times was a legitimate safety measure arising from previous incidents involving aggressive and threatening behaviour from members of the public.

DP Farouque observed:

"It seems reasonable for the respondent to assess that having two people present at a public access facility at all times is consistent with the maintenance of employee health and safety."

Importantly, the Commission was not concerned with whether a safety incident was likely to occur again. Rather, it accepted that the Council was entitled to proactively implement measures designed to mitigate identified workplace risks. On that basis, the employee's personal preference for different hours did not outweigh the Council's operational and safety justifications.

Takeaways

This decision is a timely reminder that flexible work rights are not absolute. Where an employer can demonstrate a genuine operational or safety concern, the Commission will be reluctant to interfere with sensible business decisions.

Employers should:

• Undertake and maintain appropriate risk assessments, ensuring any identified WHS concerns are properly documented and supported by contemporaneous evidence.

• Engage in genuine consultation and meaningful consideration of the employee's request.

• Clearly articulate the operational, safety or business impacts that would arise if the requested arrangement were implemented.

• Maintain a clear evidentiary record of the decision-making process, including the business rationale underpinning any refusal.

Where workplace health and safety concerns are genuine and supported by operational requirements, they may constitute reasonable business grounds for refusing a flexible work request under s 65A of the Fair Work Act.

If you are managing a flexible work request or assessing whether operational or safety concerns may justify a refusal, contact our team for practical advice.

Authors: Shawn Skyring & Jonathan Yassa

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.