Flexible working arrangements are now an expectation in the Australian employment landscape. They are also becoming more regulated.
The right to request flexible working arrangements is part of the safety net in the National Employment Standards in the Fair Work Act 2009 (Cth) (FW Act).
When a request is made, the FW Act requires employers to follow a detailed procedure over 21 days to consider and make a decision on the request. Failure to follow the FW Act here can expose employers to scrutiny from the Fair Work Commission (FWC).
Recent FWC decisions show that making mistakes in the process can lead to employer decisions not to grant a flexible working request being overturned, even where the employer believes it has strong operational reasons.
So, what does this mean for businesses? That getting the process right matters more than ever.
What are flexible working arrangements?
Flexible working arrangements refer to changes in an employee’s standard working arrangement. This could include, for example, changes to the employee’s:
· hours of work, such as start and finish times;
· pattern of work; or
· location of work, for example, working from home arrangements.
Who is eligible to make a request?
Not all employees will be eligible to make a request. To be eligible, an employee:
(a) must have completed at least 12 months continuous service immediately before making the request; or
(b) if they are a casual employee, they must have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment; and
(c) must be making the request because one of the following circumstances applies to the employee:
· they are pregnant;
· they are the parent of, or has responsibility for the care of, a child who is of school age or younger;
· they are a carer;
· they have a disability;
· they are 55 years of age or older;
· they are experiencing family and domestic violence; or
· they are supporting someone in the household experiencing family and domestic violence.
Employees must be able to clearly explain how their circumstances relate to the request and the reason for the change they are seeking. The request must also be in writing.
What to do when you receive a request?
Employers must follow a strict process in s..65A of the FW Act when considering a request, and provide a response within 21 days. The steps in the process are:
1. The employer must discuss the request with the employee:
a. Employers are required to engage with the employee and genuinely try to reach agreement about the changes to the employee’s working arrangements that can be made to accommodate their circumstances.
b. This involves meaningful discussion of the request and proper consideration of the employee’s personal circumstances.
c. These discussions should be documented.
2. If the request can’t be accommodated, consider alternative arrangements
a. If the request as made cannot be accommodated, the employer must consider whether alternative working arrangements could reasonably be implemented to address the employee’s needs.
b. The employer must also discuss these proposed alternatives with the employee and try to reach agreement.
3. Assess the required matters before deciding to refuse a request
a. The employer must be able to demonstrate that it has had regard to the consequences of refusing the request on the employee.
b. Any refusal must be based on reasonable business grounds. This includes the following:
i. the arrangements requested are too costly for the employer;
ii. Other employees’ working arrangements cannot be changed to accommodate the request;
iii. it would be impractical to change other employees’ working arrangements or hire new employees to accommodate the request; or
iv. The request would result in a significant loss of productivity or have a significant negative impact on customer service.
c. The employer must be able to explain how the reasonable business grounds for refusing the request apply to the request.
4. Prepare a compliant written response
a. Depending on the outcome of the employer’s consideration of the employee’s request, the employer’s written response must cover off on certain matters to meet the procedural requirements.
b. the response must state the outcome of the request:
i. whether the request is granted as requested; or
ii. whether, following discussions with the employee, the request could be granted subject to changes (and explain what those changes are); or
iii. that the request is refused, with the grounds for refusal explained, how the employer as well as explain to the employee the effect of ss.65B and 65C of the FW Act: that they can lodge disputes about the outcome if they wish.
5. Provide the written response to the employee by the 21-day deadline
Why following the process matters
Employees now have a pathway to dispute the outcome of their request for a flexible working arrangement both internally and in the FWC if:
(a) An employee’s request has been refused; or
(b) The employer has not provided a written response to the request within 21 days.
Recent FWC decisions show that employers are increasingly being challenged where they do not properly follow the steps outlined in s.65A, even where the employer believes they have strong reasonable business reasons for rejecting a request.
For example, in Elizabeth Naden v Catholic Schools Broken Bay Ltd [2025] FWCFB 82, a Full Bench of the FWC found that the school did not clearly demonstrate that it had followed the required process before rejecting Ms Naden's request to work part-time in her role as a teacher as she transitioned back to work after a period of parental leave. The evidence did not show that meaningful discussions had occurred about alternative options, nor did it show that the school had genuinely considered what the refusal would mean for Ms Naden.
The Full Bench emphasised that the employer’s written response to a request must clearly set out how the employer considered the impact of refusing the request, not just the operational reasons for rejecting it.
Another example is Kent Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524, which involved a request to work more hours from home to care for a toddler because the employee’s wife had taken up a new role with less flexibility. In overturning the employer’s refusal of this request, the FWC made it clear that employers need to show they have genuinely considered the individual request, rather than relying on broad statements about operational impact as a reason to reject the request. This decision is a reminder that it is important for employers to consider each request on its own circumstances.
Not only is there a risk that procedural failures will result in flexible working arrangement decisions being reversed by the FWC, but it is also important to note that employers may be exposed to civil penalties for failing to comply with flexible working arrangement obligations in the FW Act. These can be very costly for businesses as well as individuals involved in contraventions. As of early 2026, penalty amounts are up to $19,800 per contravention for individuals and up to $495,000 per contravention for companies with significantly higher amounts applying to serious contraventions.
What should your business do now?
With flexible work subject to strict procedural requirements, this is an important reminder for employers to review how they manage, assess and respond to requests.
(1) Review current processes and documentation
Businesses should ensure they have clear, consistent processes for handling flexible work requests. This includes:
· Documenting each step of the process
· Using standard templates for responses
· Ensuring decision‑making is consistent and well‑recorded
As recent cases have shown, many disputes arise not because of the outcome, but because the process was not followed correctly.
If your business does not currently have a process in place, HR Command provides templates and guidance designed to help businesses manage flexible work requests consistently and compliantly.
(2) Training for managers
Managers and team leaders are often the first to receive a flexible work request. For this reason, they need to understand:
· The businesses obligations
· What constitutes a valid request
· How they are required to consider each request
· The consultation process
· The steps they must take before a decision can be made
· How to meaningfully consider alternatives
· What “reasonable business grounds” actually means
Training managers reduces the risk of informal refusals, misunderstandings, or missed steps all of which can expose the business to avoidable disputes.
(3) Understand the cultural impact
How an employer responds to flexible work requests sends a strong message to the workforce. Employees want to feel that their circumstances are being considered genuinely and respectfully.
A well‑managed process strengthens trust, engagement and retention.
Please contact Joe Murphy, Caroline Beasley or Daniella Pagano if you have any questions on how to handle flexible work requests in your organisation.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.