Flexible Work Requests: What Employers Must Do When a Parent or Carer Asks for Change

Requests for flexible working arrangements have become part of everyday management. A parent wants to start later to do the school run; a carer needs to work from home two days a week; a pregnant employee asks to adjust her hours around morning sickness. How an employer handles these requests is not just a matter of goodwill; it is now tightly regulated, and getting the process wrong can expose a business to orders from the Fair Work Commission and to costly claims for discrimination or adverse action.

A recent decision of the Federal Court of Australia, Talaugon v Allight Pty Ltd [2025] FCA 1672, is a valuable illustration not because the employer did everything perfectly but because it ultimately succeeded by doing the important things right: it engaged with the request, offered genuine alternatives, gave written reasons grounded in the business, and kept its performance concerns separate and documented. This article explains what the law now requires and what employers should take from the case.

The right to request flexible work

The right to request flexible working arrangements sits in the National Employment Standards under the Fair Work Act 2009 (Cth). Under section 65, an employee may request a change to their working arrangements where certain circumstances apply, including being the parent of, or responsible for the care of, a child of school age or younger; being a carer; having a disability; being 55 or older; being pregnant; or being affected by family and domestic violence. A full-time or part-time employee can make the request after 12 months’ continuous service (casual employees need to be long-term, regular and systematic).

The request must be in writing and set out the change sought and the reasons for it. The employer must then give a written response within 21 days. Critically, an employer can only refuse a request on “reasonable business grounds", and since amendments that took effect in mid-2023, the process obligations have become significantly stricter.

Under section 65A, before refusing a request an employer must have discussed it with the employee, genuinely tried to reach agreement to accommodate their circumstances, and had regard to the consequences of a refusal for the employee. Any refusal must be in writing and must set out the particular business grounds relied on and how they apply and must either set out alternative changes the employer is willing to make or state that there are none. If the employer fails to respond in time or refuses, and the matter cannot be resolved at the workplace, either party can now take the dispute to the Fair Work Commission, which can conciliate and, if necessary, arbitrate and make binding orders.

Recent Commission decisions show how exacting these obligations are. In one 2025 Full Bench decision, an employer that had reasonable business grounds still lost because it had not properly considered and had not addressed in its written reasons the consequences of refusal for the employee. The lesson is that ticking some of the boxes is not enough; the whole process must be followed.

The facts: a pregnant primary carer and a contested set of requests

Ms Talaugon worked as a contracts officer for Allight, a Western Australian manufacturer. She was the primary carer of her six-year-old daughter (her husband worked a fly-in-fly-out roster), and during her employment she became pregnant with her second child. She wanted flexible arrangements so she could do school drop-off and pick-up and be home in the after-school period while still working her full 7.6 hours a day, largely from home before and after school.

From an early informal work-from-home arrangement, matters moved through a lengthy period of proposals and counter-proposals. The employer set out to formalise flexible working across the business in line with the Fair Work rules and asked staff (including Ms Talaugon) to put their requests through a written policy and process. Over several weeks, Ms Talaugon submitted a series of proposed schedules; the employer raised concerns that some proposals would split her shifts in a way that affected efficiency and asked her to confirm her fitness for work given her morning sickness. Eventually, in March 2023, the employer refused her latest specific proposal in writing but offered an alternative arrangement working from home on some days and in the office from mid-morning to early afternoon on others, which she accepted.

Around the same time, and largely separately, Ms Talaugon’s direct manager had been raising documented concerns about communication, attendance and missed tasks. About two months after the flexible arrangement was agreed, her employment was terminated. She sued, alleging the employer had breached the flexible-work and carer’s-leave standards and had terminated her because of her family/carer responsibilities and pregnancy and because she had made complaints both of which would be unlawful “adverse action”.

The Court’s decision

Justice Feutrill dismissed all of Ms Talaugon’s claims and entered judgment for the employer.

On flexible working, the Court found no contravention. The employer’s written refusals of her specific proposals gave detailed reasons principally that the split-shift structure she proposed would cause a significant loss of efficiency and productivity and affect customer service, which fell squarely within the “reasonable business grounds” the Act recognises. Importantly, the Court accepted that these reasons were genuine, not a pretext: the same manager had granted other employees’ flexible-work requests made for family or carer reasons, so he was not shown to be anti-flexibility or looking for an excuse to refuse. The Court also noted that for part of the relevant period Ms Talaugon had not yet completed 12 months’ service, so there was no obligation under section 65 at all, and that formalising a loose informal arrangement into a compliant one was not itself a breach.

On carer’s and personal leave, the Court found the refusals were correct on the facts: caring for a friend after surgery falls outside the carer’s-leave entitlement (which covers immediate family or household members); the days taken after one meeting were not supported by a medical certificate (indeed, the certificate said she was fit for full duties); and a day when she simply could not find a carer, with no illness involved, did not qualify as carer’s leave either.

On adverse action, the employer bore the reverse onus it had to prove that the real reasons for the termination did not include her pregnancy, her carer responsibilities, or her complaints. The Court was satisfied it had discharged that onus: the decision-maker gave direct evidence of his genuine reasons, and the contemporaneous documents showed a separate, documented performance-management trail. The claims against the individual managers fell away with the claims against the company.

The lessons for employers

Talaugon is a roadmap of what to do when a parent or carer asks for flexibility. The employer won because it could show a genuine, well-documented process, and every business should be able to do the same.

Treat every request seriously and follow the full process. A flexible-work request is not a favour to be granted or denied on a whim. Respond in writing within 21 days. Before refusing, actually discuss the request, genuinely try to reach agreement, and consider what refusal would mean for the employee. Skipping any step, even with good business reasons, can hand the employee a win at the Commission.

If you refuse, put real reasons in writing. Identify the specific reasonable business ground (cost, capacity, impracticality, loss of efficiency or productivity, or customer-service impact), explain how it applies to this request, and set out any alternative you are willing to offer. Vague or generic refusals do not comply.

Offer genuine alternatives. Allight did not simply say “no”. It proposed a workable alternative close to what the employee wanted, with less shift-splitting and that alternative was accepted. Meeting an employee part-way is both good practice and strong evidence of genuine engagement.

Be consistent. One of the most persuasive facts for the employer was that it had granted similar requests from other staff with caring responsibilities. Treating like cases alike protects you against claims that a particular employee was singled out.

Keep performance management separate, contemporaneous and documented. Where an employer takes adverse action against an employee who has a protected attribute (such as pregnancy or carer responsibilities) or who has made a complaint, the law reverses the onus of proof: the employer must prove the protected matter played no part in the decision. The only way to discharge that onus is with credible evidence and a decision-maker who can honestly explain the real reasons, backed by a documented history that predates and stands apart from the protected circumstance. Manage genuine performance issues on their merits, in writing, and do not let them become entangled with an employee’s request or complaint.

Understand what leave actually covers. Carer’s leave is for immediate family or household members who are ill or affected by an emergency – not friends and not simply the absence of childcare. Apply the entitlements correctly and explain your reasoning.

Get advice before you refuse or dismiss. The margins here are fine. A refusal that is procedurally deficient, or a dismissal that overlaps with a request or complaint, can be very expensive. Early advice is far cheaper than a Federal Court or Commission proceeding.