Flexible Work
Flexible work is no longer just about culture.
For eligible employees, the right to request flexible working arrangements is protected under the Fair Work Act, and the Fair Work Commission can arbitrate disputes.
If a request is not handled correctly, the Commission can make binding orders, including, in certain circumstances, ordering an employer to grant the request or make specific changes to the employee’s working arrangements.
Here’s how to assess a request properly.
Step 1: Confirm Eligibility
Has the employee:
Completed at least 12 months’ service? For casual employees, have they worked regularly and systematically for at least 12 months and is there a reasonable expectation of continuing work on that basis?
Made the request in writing?
Identified an eligible circumstance (e.g. pregnancy, caring for a school-aged child or younger, being a carer, disability, age 55+, experiencing family and domestic violence, or supporting an immediate family or household member experiencing family and domestic 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.
Consider the consequences for the employee if the request is refused.
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.
Outline any other changes you are willing to make, or state that there are no other changes you are willing to make.
Include information about resolving disputes through the Fair Work Commission.
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?
Work health and safety duties to manage psychosocial risks may also be relevant.
