Employment Law
Flexible Work Arrangements: Employee Rights and Employer Obligations
Flexible work is no longer just a perk — it is a legal right for eligible employees. Under the Fair Work Act, certain employees can request changes to their working arrangements, and employers can only refuse on reasonable business grounds. This guide explains the framework and how to manage requests.
What the Law Says
Section 65 of the Fair Work Act 2009 (as amended) gives eligible employees the right to request flexible working arrangements. Eligible employees include parents or carers of school-age children or younger, employees with disability, employees aged 55 or older, employees experiencing family or domestic violence, and employees who are carers. Employers must respond in writing within 21 days and can only refuse on reasonable business grounds after genuinely discussing the request and exploring alternatives.
What Employers Must Do
Know who is eligible
Understand which employees have the right to request flexible work and ensure managers are trained on eligibility criteria.
Respond within 21 days
Every request must receive a written response within 21 days. The response must either accept the request or refuse it with specific reasons.
Discuss the request genuinely
Before refusing, you must discuss the request with the employee and genuinely try to reach agreement on alternative arrangements.
Document your reasoning
If refusing, document the specific reasonable business grounds. The FWC can review refusals and may order compliance.
Consider alternatives
If the exact request cannot be accommodated, propose alternative arrangements that partially meet the employee needs.
Review regularly
Flexible work arrangements should be reviewed periodically to ensure they are still working for both parties.
Common Mistakes and How to Avoid Them
Mistake: Refusing without genuine discussion
Fix: Since 2023, employers must discuss requests before refusing. A blanket refusal without discussion is a breach.
Mistake: Not providing reasons in writing
Fix: Written responses with specific reasons are mandatory. A verbal refusal or one without reasons does not comply.
Mistake: Treating flexible work as a privilege that can be withdrawn at will
Fix: Once agreed, flexible work arrangements form part of the employment terms. Changes require discussion and agreement.
Mistake: Refusing based on tradition rather than genuine business grounds
Fix: The FWC will assess whether the grounds are genuinely business-related, not just based on management preference or historical practice.
Penalties and Consequences
Failure to comply with flexible work request obligations can result in FWC orders requiring you to grant the request or re-consider it, general protections claims if refusal is for a discriminatory reason (penalties up to $469,500), and unfair dismissal findings if the employee resigns due to an unreasonable refusal (constructive dismissal).
When to Get Professional Help
Jordan Firme Business Consultants helps employers develop flexible work policies, assess requests, and implement arrangements that work for both the business and employees.
Frequently Asked Questions
You can only refuse on reasonable business grounds after genuinely discussing the request and exploring alternatives. Reasonable business grounds include excessive cost, loss of efficiency, inability to arrange work among remaining staff, inability to recruit a replacement, and significant loss of productivity.
Requests can cover changes to hours of work (e.g., reduced hours), changes to patterns of work (e.g., job sharing, compressed weeks), and changes to location of work (e.g., working from home). The request must be in writing and specify the change and reasons.
You are not legally required to consider requests from ineligible employees under Section 65, but many employers extend the right to all employees as a matter of good practice. Consider the request on its merits regardless.
Yes, you can agree to the request with reasonable conditions, such as a trial period, regular review dates, or specific performance expectations. Document the agreed conditions in writing.
You can propose changes, but you should discuss them with the employee first. If you need to end the arrangement, provide reasonable notice and consult. Unilateral withdrawal without discussion may breach good faith obligations.
Need Help With Flexible Work Requests?
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