Flexibility At Work

If you have worked for your employer for at least 12 months, you can ask for flexible working arrangements, such as changed hours, a different pattern of work or working from home, if you are pregnant, a parent or carer, have a disability, are 55 or older, or are affected by family and domestic violence. Your employer can only refuse on reasonable business grounds, and the Fair Work Commission can now settle disputes.

One of the National Employment Standards under the Fair Work Act 2009 (Cth) is the right to request flexible working arrangements (ss 65 to 65C). Eligible employees can ask to change their:

hours of work, for example fewer hours, or different start and finish times;
patterns of work, for example split shifts, job sharing or working on different days; or
location of work, for example working from home for some or all of the week.

Since 6 June 2023 the rules have been stronger. Your employer has to genuinely engage with your request, give reasons if it says no, and the Fair Work Commission can now order it to grant the request if the refusal was not justified.

Who Can Request Flexible Work Arrangements?

You can request a change if you want it because any of these circumstances applies to you (s 65(1A)):

You are pregnant.

You are the parent of, or have responsibility for the care of, a child who is school age or younger.

You are a carer, within the meaning of the Carer Recognition Act 2010 (Cth).

You have a disability.

You are 55 or older.

You are experiencing family and domestic violence, or you provide care or support to a member of your immediate family or household who is experiencing it.

Length of service. You must have worked for the employer for at least 12 months of continuous service before making the request. If you are a casual, you must have been a regular casual employee for at least 12 months, with a reasonable expectation of continuing employment on a regular and systematic basis (s 65(2)).

Returning from parental leave. If you are a parent returning to work after birth-related or adoption-related leave, you can ask to work part-time to help care for your child.

How Can I Request Flexible Working Arrangements?

Your request must be in writing, and it must set out the change you are asking for and your reasons for it (s 65(3)).

A good request also says which of the circumstances above applies to you, explains how the change would work in practice (for example who would cover which tasks, and how you would stay contactable), and suggests a trial period. The more concrete your request, the harder it is to refuse on business grounds.

Keep a copy of your request and note the date you gave it to your employer: the 21-day clock starts then.

What Must My Employer Do With My Request?

Your employer must give you a written response within 21 days (s 65A). The response must either grant the request, set out a different change you have agreed on after discussing it, or refuse it.

Your employer can refuse only if it has:

discussed the request with you, and genuinely tried to reach agreement on changes that would accommodate your circumstances;
not reached agreement with you;
had regard to the consequences of refusing for you; and
reasonable business grounds to refuse.

Reasonable business grounds include that the arrangement would be too costly, that other employees' arrangements cannot be changed to accommodate it, that it would be impractical to change others' arrangements or recruit new staff, or that it would be likely to cause a significant loss of efficiency or productivity or a significant negative impact on customer service.

A refusal must explain the particular business grounds and how they apply to your request, say whether there are other changes the employer would be willing to make, and tell you how you can take a dispute to the Fair Work Commission.

My Employer Refused My Request For Flexible Work Arrangements. What Can I Do?

Try To Resolve It At Work

The Act requires you and your employer first to try to resolve the dispute by discussion at the workplace level (s 65B). Put your concerns in writing, and propose alternatives.

Take It To The Fair Work Commission

If that does not work, or if 21 days have passed without a written response, you can refer the dispute to the Fair Work Commission. It will first try to resolve it by conciliation or mediation, and can then arbitrate. It can order your employer to grant the request, to make other specified changes, or to take further steps to consider it properly, taking into account fairness between you and your employer (s 65C).

Discrimination And Adverse Action

Refusing a request, or treating you badly for making one, can also be discrimination because of sex, pregnancy, family or carer's responsibilities, age or disability, or adverse action under the general protections. Making a request is exercising a workplace right. See discrimination and general protections.

WA State System Employees

If you are in the WA state system, a similar right to request applies from 31 January 2025 under Part 4A of the Minimum Conditions of Employment Act 1993 (WA), with a 21-day response time and disputes referred to the WA Industrial Relations Commission. See minimum conditions in the WA state system.

How Can MKI Legal Help You?

We can help you prepare a strong written request, respond to a refusal, and take a dispute to the Fair Work Commission. If your employer has unreasonably refused your request for a flexible working arrangement, or you feel the refusal may be discriminatory, talk to our lawyers for a no-obligation, confidential consultation.

Case studies