When an eligible employee asks in writing to change when, where or how they work, the Fair Work Act 2009 (Cth) (the Act) puts you on a legal clock. You have 21 days to respond in writing, you must genuinely discuss the request before you can refuse it, and any refusal has to rest on reasonable business grounds. Get the process wrong and the Fair Work Commission can step in and order you to grant the request, with court penalties on top for a breach of the National Employment Standards.
Flexible working requests have become routine in Australian workplaces, and they reach deep into the small and medium business world: a working parent asking for school-hours shifts, an employee with a disability asking to adjust start times, an older worker easing towards retirement from home. This guide sets out who can make a request, the 21-day response duty, the conditions you must satisfy before refusing, what a refusal letter has to contain, and what happens if you get it wrong.
Who can make a request and when your duty starts
The right to request flexible work sits in Division 4 of Part 2-2 of the Act, part of the National Employment Standards. Your duty only attaches once an eligible employee makes a proper request, so the first step is knowing who qualifies.
An employee can request a change in working arrangements if a listed circumstance applies to them and they want the change because of that circumstance. The circumstances are set out in s 65 of the Act:
- Parent or carer: the employee is the parent, or has responsibility for the care, of a child of school age or younger.
- Pregnancy: the employee is pregnant.
- 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 member or household member who is experiencing it.
Two of these circumstances, pregnancy and family and domestic violence, were added by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which took effect for flexible work requests on 6 June 2023. The same reforms introduced the pre-refusal discussion duties, the requirement to explain grounds in the refusal letter, and the Commission's arbitration powers, as the Fair Work Ombudsman explains.
An employee also needs service behind them. A non-casual employee must have completed at least 12 months of continuous service with you immediately before making the request. A casual employee must have been employed on a regular and systematic basis for a sequence of periods over at least 12 months, and have a reasonable expectation of continuing on that basis. An employee returning to work after parental leave for the birth or adoption of a child can also request part-time work to care for the child.
The request itself must be in writing and explain the changes sought and the reasons for them, as the Fair Work Ombudsman's guidance confirms. A verbal mention in a corridor does not start the clock, although treating a written follow-up seriously is good practice.
Two scope points. First, this part of the National Employment Standards applies to every national system employer, with no headcount or turnover threshold: a five-person cafe carries the same 21-day duty as a national head office. Second, check any modern award or enterprise agreement that covers the employee, because awards and agreements can add flexibility, consultation or dispute-settlement terms on top of the Act. If a state or territory law gives the employee a better entitlement, that law continues to apply.
Respond in writing within 21 days
Once a valid request lands, s 65A of the Act requires a written response within 21 days. The response must do one of three things:
- grant the request;
- set out an agreed change where, after discussion, you and the employee agree on something different from the request; or
- refuse the request, but only on the conditions set out below.
The 21-day clock runs from the day the request is made. Missing it is itself a breach, and the Commission can treat a silent employer as having refused the request, which then exposes the refusal to challenge. The practical workflow is to acknowledge the request immediately, book a discussion within the 21-day window, assess the operational impact in that discussion, and then put the decision in writing. If you and the employee agree to a variation of the request, confirm the agreed change in writing within 21 days of the original request.
The conditions you must meet before refusing
You cannot refuse a request just because it is inconvenient. Under s 65A(3) of the Act, a refusal is lawful only if all of these are true:
- you have discussed the request with the employee;
- you have genuinely tried to reach an agreement about changes to accommodate the employee's circumstances;
- no such agreement was reached;
- you have had regard to the consequences of the refusal for the employee; and
- the refusal is on reasonable business grounds.
The discussion step is the one employers most often treat as a formality. It is not. A refusal made without a genuine discussion is unlawful regardless of how strong your business grounds are. The Act also makes clear that genuinely trying to reach agreement does not require you to accept a change you would have reasonable business grounds to refuse.
Reasonable business grounds are defined by a non-exhaustive list in s 65A(5) of the Act. They include that:
- the requested arrangement would be too costly for you;
- there is no capacity to change other employees' working arrangements to accommodate the request;
- it would be impractical to change other employees' arrangements, or to recruit new employees, to accommodate the request;
- the arrangement would be likely to result in a significant loss in efficiency or productivity; or
- the arrangement would be likely to have a significant negative impact on customer service.
The Act adds that the specific circumstances of the employer, including the nature and size of the enterprise, are relevant. A small team where every roster slot is spoken for may more readily establish that change is impractical than a large one. But the grounds must be genuine and anchored in your operations, not asserted. The Commission can later decide that your stated grounds were not reasonable business grounds at all.
What a refusal letter must contain
If you do refuse, the written response has to do more than say no. Under s 65A(6) of the Act, it must:
- set out the reasons for the refusal;
- state your particular business grounds and explain how they apply to the request;
- either set out the 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 provisions, namely that the employee can take the matter to the Fair Work Commission.
The refusal letter is a legal document in practice. If the dispute reaches the Commission, the letter is the first thing examined, and a thin or formulaic letter makes the refusal hard to defend. The Fair Work Ombudsman's guidance is the same: the response must explain the grounds and how they apply to the request, offer any alternative changes or say there are none, and point the employee to the Commission's dispute process.
What happens if you get it wrong
Three enforcement paths can follow a mishandled request:
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Fair Work Commission disputes: Section 65B of the Act requires you and the employee to try to resolve the dispute at the workplace level first. If that fails, either party can refer the dispute to the Commission, which usually starts with conciliation or mediation. If it is not resolved, the Commission can arbitrate under s 65C and make binding orders, including:
- if you never gave a written response, an order that you be taken to have refused the request;
- an order that your grounds be taken to be, or not to be, reasonable business grounds;
- an order that you take further steps, such as giving a proper response; and
- where there is no reasonable prospect of resolution otherwise, an order that you grant the request or make specified changes to accommodate the employee's circumstances.
Contravening a Commission order is itself a civil remedy provision carrying penalties.
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Court penalties: A refusal, failure to respond or inadequate response can amount to a contravention of the National Employment Standards under s 44 of the Act, which is a civil remedy provision. The maximum penalty is 60 penalty units for an individual, or 600 penalty units for a serious contravention, and the maximum for a body corporate is five times those amounts. The Fair Work Ombudsman can start court proceedings, so this is not just a private dispute between you and the employee.
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General protections exposure: Because many requests flow from protected attributes such as pregnancy, disability or age, a refusal that is really driven by the attribute rather than genuine business grounds can also attract general protections claims. Keep the decision anchored to the role and the business grounds, and treat every request consistently.
A compliance checklist for handling requests
Keep this sequence in front of whoever handles a request:
- Confirm eligibility: check the circumstance and the 12-month service test before the clock starts.
- Calendar 21 days: from the date of the written request.
- Acknowledge in writing: schedule a genuine discussion.
- Discuss the operational impact: consider the consequences of refusal for the employee.
- Explore alternatives: different days, hours, locations or a trial period.
- Refuse only on reasonable business grounds: have the evidence in hand.
- Send the written response within 21 days: use the s 65A(6) contents.
- File the request, meeting notes and response: record any agreed variation to hours, location or duties.
- Train managers: review your policy against the current Act, especially the changes that took effect on 6 June 2023.
Where a lawyer helps
A lawyer's role here is mostly about judgement and drafting. A practitioner can:
- assess whether the employee is eligible and whether your proposed grounds are likely to be accepted as reasonable business grounds;
- draft the refusal response so it satisfies s 65A(6) and does not inadvertently admit a discriminatory motive;
- represent you in a Fair Work Commission conciliation or arbitration, including negotiating an outcome before an order is made;
- review your flexible work policy and manager training against the current Act; and
- help you handle several overlapping requests consistently, which is where employers most often slip into inconsistent treatment that looks discriminatory.
Getting a lawyer involved early is usually cheaper than defending a Commission dispute later.
The discussion comes first
No part of this obligation decides more about the outcome than the genuine discussion. The Act does not let you refuse a request because your business grounds are good. It lets you refuse only after you have discussed the request, tried to find an accommodation, and weighed the consequences for the employee, with reasonable business grounds as the final hurdle. A refusal letter that is perfect on paper cannot save a refusal that skipped the conversation. The Commission's arbitration power exists precisely to test that sequence.
For most employers the first action this week is simple: work out who currently handles flexible work requests, make sure a written request is never left unanswered past 21 days, and brief that person on the discussion requirement before any refusal is drafted. In short: know who can ask, respond in writing within 21 days, hold the discussion before any refusal, ground the refusal in real business reasons, and keep records of every step. Handle those pieces and the request is manageable; skip one and the Commission can undo the decision and order you to grant the arrangement anyway.