The Fair Work Commission’s recent decision in Vanessa Duncan v Coal & Allied Mining Services Pty Ltd [2026] FWC 1427 provides useful guidance for employers navigating requests for flexible working arrangements under the Fair Work Act 2009 (Cth) (FW Act).
The case highlights the complexities involved when operational requirements intersect with employees’ caring responsibilities, and in particular whether ‘fairness’ is a consideration in resolving disputes relating to flexible work requests.
Background
Ms Duncan, a haul truck driver at the Mount Thorley Warkworth open cut coal mine, sought flexible work arrangements following parental leave, citing her responsibilities as a parent and the lack of suitable childcare for night shifts.
The employee’s initial request in May 2025 was for reduced hours and day shifts only.
After negotiations, a temporary arrangement (involving a short-term, day-shift-only arrangement) was agreed upon, as a ‘temporary and finite compassionate measure to support [the employee’s] return from parental leave’. Ms Duncan later sought to make this temporary arrangement permanent.
The employer, Coal & Allied Mining Services, refused the employee’s request for an ongoing arrangement, saying that this would be disruptive to its operations, productivity and efficiency. The employer also cited safety issues, and the potential in creating a precedent for other employees that was not sustainable for the business. The employer instead suggested a compromise job-share arrangement, which the employee did not accept.
The dispute was referred to the FWC, which found that the employer’s refusal of the driver’s request was reasonable. The FWC accepted that the employer’s refusal was based on reasonable business grounds, including significant operational impacts, increased costs, and genuine safety concerns.
‘This decision is not about whose position should be preferred. Fairness between the parties is a neutral consideration in this case because it was reasonable for Ms Duncan to make the request, but also reasonable for C&A MS to refuse the request for the reasons discussed above.’
The takeaway from the above comment is that reasonableness, rather than fairness, is a key factor in terms of the FWC adjudicating flexible work request disputes.
Practical tips for employers in relation to flexible work arrangements
- Document everything: Employers should ensure that any refusal is supported by detailed, evidence-based reasoning specific to their operational context. Keep thorough records of all discussions, requests, and responses regarding flexible work arrangements.
- Be specific: When refusing a request, provide detailed reasons and consider offering alternative solutions.
- Consider personal circumstances: While employers are not required to accommodate every request, they must demonstrate that they have considered the employee’s personal circumstances and the consequences of refusal. In this case, the employer’s awareness of Ms Duncan’s caring responsibilities and the operational challenges was key to the decision.
If you have any concerns or questions, the team at Emplawyer are ready to help.
