Flexible Work Requests in Australia: What Employers Must Do

Eligible employees in Australia have the legal right to request flexible working arrangements. Employers must respond within 21 days, consult meaningfully, and can only refuse on reasonable business grounds explained in writing. Saying no without following the right process is no longer an option.

Flexible work requests used to be relatively easy for employers to decline. That changed with amendments to the Fair Work Act in 2023, which significantly strengthened employee rights and gave the Fair Work Commission power to arbitrate disputes where an employer refuses a request.

The result is that flexible work requests need to be taken seriously, documented carefully, and responded to within the legal timeframe. Here is what you need to know.

Who can make a flexible work request?

Employees who have completed at least 12 months of continuous service with the business, and who meet one of the following criteria, can make a formal flexible work request under the Fair Work Act 2009 (Cth): (Fair Work Ombudsman — Flexible Working Arrangements)

• They are a parent or carer of a child who is school age or younger
• They are a carer under the Carer Recognition Act 2010
• They have a disability
• They are 55 or older
• They are experiencing family or domestic violence or providing care or support to a person experiencing family or domestic violence

Casual employees can also make a request if they are engaged on a regular and systematic basis and have a reasonable expectation of continuing employment.

What can an employee request?

Flexible work requests can cover changes to hours of work, changes to patterns of work such as split shifts or compressed weeks, changes to location such as working from home, or any other change to working arrangements. There is no prescribed form. The request must be in writing and explain the reasons.

What must an employer do?

Once a valid flexible work request is received, the employer must:

• Respond in writing within 21 days
• Either approve the request, or refuse it on reasonable business grounds
• If refusing, the written response must state the business grounds for the refusal and explain why those grounds apply
• Before refusing, genuinely consult with the employee and consider whether alternative arrangements could work

“Simply saying no is no longer enough. The Fair Work Commission can now arbitrate flexible work disputes and order an employer to grant a request. Process and documentation matter more than they ever did.”

What counts as reasonable business grounds to refuse?

The Fair Work Act gives examples of reasonable business grounds including:

• The proposed arrangements would be too costly
• There is no capacity to change the working arrangements of other employees to accommodate the request
• The change would result in a significant loss of efficiency or productivity
• The change would have a significant negative impact on customer service
• Insufficient work is available during the hours the employee proposes to work

The grounds must be genuine and specific to the role and the request. A blanket policy of not allowing working from home is not a specific business ground.

What happens if there is a dispute?

If the employer refuses and the employee disagrees, the matter can go to the Fair Work Commission. The FWC can deal with the dispute by conciliation, mediation, or arbitration. It can make orders requiring an employer to grant a request or to provide a different arrangement. (Fair Work Commission — Flexible Work)

What should employers do to manage these requests well?

• Have a clear written policy on flexible work requests
• Train managers to handle requests consistently and without bias
• Document all requests, consultations, and responses
• Consider each request on its own merits rather than applying a blanket approach
• Where possible, try to find an arrangement that works for both parties before reaching a refusal

Jigsaw HR helps businesses build flexible work policies and train managers to handle requests properly. It is a small investment that avoids a much larger problem down the track.