Flexible work is no longer just about culture.

It is a regulated right under the Fair Work Act, and the Fair Work Commission is actively arbitrating disputes.

If you refuse incorrectly, you can be ordered to reconsider - or worse.

Here’s how to assess a request properly.

Step 1: Confirm Eligibility

Has the employee:

• Completed at least 12 months’ service? Including long-term regular casuals (unless an enterprise agreement provides otherwise)
• Made the request in writing?
• Identified a protected circumstance (e.g. caring responsibilities, disability, pregnancy, age 55+, family violence)?

The change must be connected to that circumstance - not general preference.

Step 2: Separate Preference from Legal Right

Requests based on convenience or lifestyle choice do not automatically fall within legal protection.

However, if there is a protected connection, the request must be genuinely considered.

Avoid blanket statements like:

• “We don’t allow that.”
• “That’s against policy.”

Policy cannot override legislation.

Step 3: Assess Operational Impact

If you intend to refuse, you must be able to demonstrate reasonable business grounds.

This may include:

• Significant cost
• Inability to reorganise work
• Reduced service delivery
• Supervision limitations
• Genuine operational disruption

These grounds must be evidence-based.

Assumptions will not withstand scrutiny.

Step 4: Consult Properly

Before making a decision:

• Meet with the employee.
• Explore alternatives.
• Consider partial flexibility.
• Document the discussion.

Failure to genuinely engage and document the discussion significantly weakens an employer’s position in the Fair Work Commission.

Step 5: Provide a Clear Written Response

You must respond within 21 days.

If refusing:

• State the specific business grounds.
• Explain why they apply.
• Confirm consultation occurred.
• Outline any alternative arrangements considered.

Vague responses create risk.

Step 6: Consider Psychosocial Impact

Flexible work disputes can escalate quickly.

Ask:

• Is this creating distress?
• Is the relationship deteriorating?
• Are supervisors equipped to manage the conversation appropriately?

The positive duty to manage psychosocial risks applies here too.

Step 7: Monitor and Review

If flexibility is approved:

• Set clear expectations.
• Establish communication protocols.
• Schedule a review period.
• Monitor output and team impact.

Flexibility is not “set and forget”.

Flexible work is manageable - if handled properly.

The risk comes from rushed decisions, poor documentation, and reliance on policy instead of process.

If you need support navigating a complex request, contact HR Dynamics before it escalates.