Flexible work requests and your legal obligations as an Australian employer

The obligation in one paragraph

When an eligible employee asks to change their working arrangements because of pregnancy, caring responsibilities, disability, age, or family and domestic violence, you have a legal obligation to deal with that request properly. The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) set a strict process. You must respond in writing within 21 days, discuss the request and genuinely try to reach agreement, refuse only on reasonable business grounds, and if you do refuse, give detailed written reasons. Get any of that wrong and the Fair Work Commission (FWC) can arbitrate the dispute and order you to change the working arrangement, with penalties for contravening its orders.

This guide sets out who can make a request, the four duties that attach the moment one arrives, what happens if you fall short, and the practical steps to put in place before the next request lands on your desk.

Who the obligation applies to, and what triggers it

The obligation applies to every national system employer, which in practice means every private sector employer in Australia. That includes small business. From 6 June 2023 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) removed the exemption that previously excluded employers with fewer than 15 employees, so a three-person team is bound by the same process as a large company.

The duties are triggered when an employee who qualifies makes a written request for a change to their hours, pattern, or location of work. An employee is eligible if, immediately before making the request, they have completed at least 12 months of continuous service and one of the following applies to them:

• Pregnancy: the employee is pregnant.
• Caring for children: the employee is the parent, or has responsibility for the care, of a child who is of school age or younger.
• Carer: the employee is a carer within the meaning of the Carer Recognition Act 2010 (Cth).
• Disability: the employee has a disability.
• Age: the employee is 55 or older.
• Family and domestic violence: the employee is experiencing family and domestic violence, or provides care or support to an immediate family or household member who is experiencing it.

Casual employees can also make a request, but the test is different. A casual must have been employed on a regular and systematic basis for a sequence of periods covering at least 12 months, and must have a reasonable expectation of continuing employment on that basis.

The request itself must be in writing and must set out the change sought and the reasons for it. A passing comment in the lunchroom does not start the clock. A written request does, and from that moment the duties below apply.

Duty one: respond in writing within 21 days

Under s 65A of the Fair Work Act 2009 (Cth) you must give the employee a written response within 21 days of the request. The response must do one of three things: grant the request, set out a different change that you and the employee have agreed on after discussion, or refuse the request with the content the Act requires.

The 21-day deadline is a hard obligation, not a target. If 21 days pass without a written response, the employee can take the dispute to the FWC, and the Commission can make an order that you are taken to have refused the request. Missing the deadline is also a contravention of the NES in its own right, and NES contraventions are enforceable in court.

Two practical steps keep this duty manageable. First, confirm in writing the date the request was received, so there is no argument about when the clock started. Second, diarise the response deadline the day the request arrives, before other work crowds it out.

Duty two: discuss the request and genuinely try to agree

You are not allowed to refuse a request out of hand. Before refusing, the Act requires you to do three things: discuss the request with the employee, genuinely try to reach an agreement about changes to accommodate their circumstances, and have regard to the consequences of a refusal for the employee.

Genuinely trying to reach agreement means more than reading the request and replying no. In practice it means a real conversation about what the employee needs, what the business can support, and what middle ground exists. A trial arrangement, a temporary variation, or a compromise on hours will often resolve a request that a flat refusal would turn into a formal dispute.

One qualification matters here. The Act does not require you to agree to a change if you would have reasonable business grounds for refusing it. The point of this duty is that you must engage properly with the request, not that you must say yes. Document the discussion and any alternatives explored, because if the matter later reaches the FWC, that record shows the attempt was genuine.

Duty three: refuse only on reasonable business grounds

The Act sets a statutory test: a refusal must be on reasonable business grounds. The grounds listed in the Act are not exhaustive, but they are the ones the FWC looks to first:

• Cost: the requested arrangements would be too costly for the business.
• Capacity: there is no capacity to change the working arrangements of other employees to accommodate the request.
• Practicality: it would be impractical to change other employees' arrangements, or to recruit new employees, to accommodate the request.
• Efficiency: the arrangements would be likely to result in a significant loss in efficiency or productivity.
• Customer service: the arrangements would be likely to have a significant negative impact on customer service.

The size and nature of your business is relevant. The Act itself notes that a small employer may have no capacity to reshuffle other employees to cover a change, and that can be a legitimate ground. But the ground must be real and particular to your business, not a general preference for how things have always been done. If you cannot point to a concrete cost, capacity, efficiency, or service impact, the ground is unlikely to survive scrutiny.

Duty four: explain your reasons in detail

If you refuse, the written response must do more than say no. Under s 65A(6) of the Act it must:

• include details of the reasons for the refusal;
• set out your particular business grounds and explain how each ground applies to the specific request;
• set out the alternative changes you would be willing to make that would accommodate the employee's circumstances to some extent, or state that there are no such changes; and
• set out the effect of the dispute and arbitration provisions.

This is where employers most often come unstuck. A refusal letter that says the request does not suit the business does not satisfy the Act, because it does not identify particular grounds or explain how they apply. If you cannot articulate a specific business ground and how it applies to the request, you should not be refusing. The response also needs to tell the employee about their dispute options, because the Act says the response must set out the effect of the FWC dispute provisions.

What happens if you get it wrong

The consequence of failing any of these duties is not just an unhappy employee. Since the Secure Jobs, Better Pay reforms took effect for requests made from 6 June 2023, the FWC can deal with disputes about flexible work requests. The process runs in stages:

• Workplace level first: The parties must try to resolve the dispute through discussion at the workplace before anyone involves the Commission.
• Conciliation: If workplace discussion fails, the dispute can be referred to the FWC, which must first try to resolve it by conciliation or other non-arbitral means unless there are exceptional circumstances.
• Arbitration: If conciliation fails, the FWC can arbitrate. Its orders include declaring that the grounds for refusal were not reasonable business grounds, ordering you to take further steps to respond properly, and, where there is no reasonable prospect of the dispute being resolved otherwise, ordering you to grant the request or make specified alternative changes.

Contravening an FWC order is a civil remedy provision carrying up to 60 penalty units, currently about $18,780. Beyond the flexible work provisions themselves, failing to respond within 21 days is a contravention of the NES, which is enforceable in court. And because making a request is a workplace right, taking adverse action against an employee because they asked for flexibility can expose you to a general protections claim, which can end in compensation orders. Refusals tied to pregnancy, disability, age, or carer's responsibilities can also ground complaints under state and federal anti-discrimination laws.

Related obligations that flexibility triggers

A flexible work arrangement does not sit in isolation. Once an arrangement is in place, a few other obligations follow:

• Work health and safety: your duty of care follows the work, not the location. A home office is treated as a workplace when work is performed there, so duties such as identifying hazards, consulting with workers, and providing safe equipment continue to apply. For a work-from-home arrangement that might mean a risk assessment of the home workstation and regular check-ins.
• Contracts and records: if an arrangement is agreed, document it. A variation letter or updated contract recording the new hours, pattern, or location protects both sides. Keep the request, your response, and any agreed changes on file.
• Privacy: requests for flexibility often reveal sensitive information, such as health conditions, pregnancy, or experiences of family and domestic violence. If your business is covered by the Privacy Act 1988 (Cth), which generally applies once annual turnover exceeds $3 million, that information must be handled in line with the Australian Privacy Principles and kept confidential.
• Awards and enterprise agreements: modern awards and enterprise agreements can contain their own flexibility mechanisms, such as individual flexibility arrangements, and must include a dispute resolution procedure. Assess each request against both the NES and any applicable instrument, remembering that award and agreement terms cannot exclude the NES minimums.

A compliance checklist for the next request

When a flexible work request arrives, work through this list:

1. Check eligibility: has the employee completed 12 months of continuous service, or are they a long-term regular casual, and does one of the statutory circumstances apply?
2. Confirm the request in writing and note the date it was received.
3. Diarise the 21-day response deadline.
4. Meet with the employee, explore alternatives, and record the genuine attempt to reach agreement.
5. Decide. If granting, confirm the change in writing. If refusing, make sure you have identified particular reasonable business grounds and how they apply.
6. Draft the written response, including the alternative changes you would make and the employee's dispute options.
7. Keep the full file: request, notes of discussions, response, and any variation to the contract.
8. Review the arrangement after a reasonable period, and adjust it or the policy as the business evolves.

Where a lawyer helps

The framework is straightforward to describe but easy to get wrong in practice. A lawyer can help you:

• draft a flexible work policy and a written response template that satisfies s 65A(6), so the 21-day obligation is met consistently;
• stress-test whether a proposed refusal rests on genuine reasonable business grounds before you commit it to writing;
• review or draft variation letters and updated contracts when arrangements are agreed; and
• represent you if a dispute reaches the FWC, including at conciliation and arbitration.

The deadline that catches employers out

If there is one part of this framework to fix this week, it is the written response. The 21-day clock is unforgiving, and the requirement to set out particular grounds, how they apply, and the alternatives you considered is where refusals most often come unstuck. Before the next request arrives, put a response template in place, agree with your managers on the grounds the business can genuinely rely on, and diarise the deadline the day any request lands. Handled properly, the process protects the business as much as the employee, because a request dealt with fairly and on the record is a request that is far less likely to become a Commission dispute.