Introduction

The Fair Work Act 2009 (Cth) provides employees with the right to request flexible work after 12 months of service for reasons such as carer status, disability, age, and family violence, requiring employers to genuinely consider these requests and respond in writing within 21 days.

Recent Fair Work Commission cases underscore the importance of individualised assessment, clear linkage between employee needs and the request, and the necessity for employers to provide evidence of adverse business impact when refusing requests. Notably, precedent and blanket policies are insufficient grounds for refusal; each case must be judged on its merits.

The Fair Work Act 2009 (Cth) and National Employment Standards

The legal basis for flexible work arrangements in Australia primarily sits within the Fair Work Act 2009 (Cth), specifically in the National Employment Standards (NES). Under these provisions, employees who meet certain eligibility criteria may formally request changes to their working arrangements—such as working from home, altered hours, or job-sharing—if they have completed at least 12 months’ continuous service (or, for casuals, regular work over 12 months with a reasonable expectation of ongoing engagement).

Eligible employees include:

• Parents/carers of a child of school age or younger
• Carers under the Carer Recognition Act 2010
• Persons with a disability
• Employees aged 55 or over
• Persons experiencing family or domestic violence or providing support to a household member who is
• Pregnant employees

Changes to Legislation

On 6 June 2023, the following changes were made to the Fair Work Act 2009 (Cth) :

• Expanded the scope of eligibility: Now explicitly including pregnant employees and broadening the definition of who may seek flexible work due to family or domestic violence.
• Strengthened employer obligations: Before refusing a flexible work request, employers must meet with the employee, discuss the request, and consider reasonable alternatives. The process and timeline for decision-making are more prescriptive, including a written response within 21 days detailing reasons for refusal and any alternative arrangements considered.
• Enshrined “genuine consideration”: Employers are required to demonstrate that they have truly considered the employee’s circumstances and attempted to reach an agreement.
• Introduced robust dispute resolution: The Fair Work Commission can now conciliate and, if necessary, arbitrate disputes, with the power to order employers to grant requests if a refusal does not satisfy legislative requirements.
• Clarified “reasonable business grounds” for refusal: Employers may only reject requests if substantiated, for example, by excessive cost, significant operational impact, or an inability to change arrangements without detriment to business performance.

Procedural Requirements and Best Practice

Employers are required to:

• Respond in writing within 21 days: Clearly state whether the request is granted or refused, and, if refused, provide detailed reasons and information regarding alternatives considered.
• Document discussions and reasons: A record of consultation and genuine efforts to accommodate must be kept.
• Consider the impact on the employee: Decisions should weigh both operational needs and the effect of refusal on the individual.

These obligations are not mere formalities as failure to comply, exposes employers to legal challenge and possible orders from The Fair Work Commission facilitating the employee’s request.