Flexible work requests: assessing and responding lawfully

Division 4 of Part 2-2 of the Fair Work Act 2009 (Cth) gives certain employees the right to request a change in working arrangements, and gives employers a defined process for responding. The entitlement is a right to make a request and to have it dealt with in a particular way. It is not a right to be granted the arrangement sought, and it is not a general right to work from home.

The obligations that attach to the employer are procedural and substantive at the same time. There must be a written response within 21 days. That response must either approve the request, set out changes to working arrangements that the employer and employee have agreed instead, or refuse the request. A refusal is only available where the employer has discussed the request with the employee, genuinely tried to reach an agreement, had regard to the consequences of refusal for the employee, and cannot accommodate the request on reasonable business grounds. The written refusal itself has prescribed content.

This guide deals with the request and the response: how the request arrives, how it is triaged, what the discussion should cover, how business grounds are particularised, what the written response contains, and what happens if the matter is disputed. Adjacent subjects are referred to only where leaving them out would mislead. AWS is a workplace consultancy, not a law firm, and this is general information rather than legal advice.

An employee other than a casual employee is eligible where they have completed at least 12 months of continuous service with the employer and one or more statutory circumstances applies to them. A casual employee is eligible where, immediately before making the request, the employee is a regular casual employee who has been employed on that basis for a sequence of periods during a period of at least 12 months, has a reasonable expectation of continuing employment on a regular and systematic basis, and one or more statutory circumstances applies. The 12 month period is assessed across the sequence of engagements rather than requiring one uninterrupted block of work.

The statutory circumstances are that the employee is pregnant; is a parent, or has responsibility for the care of, a child who is of school age or younger; is a carer within the meaning of the Carer Recognition Act 2010 (Cth); has a disability; is 55 or older; is experiencing family and domestic violence; or provides care or support to a member of their immediate family, or a member of their household, who requires care or support because that person is experiencing family and domestic violence.

The change requested must relate to the circumstance relied on. That link matters at the assessment stage: a request for later start times connected with a school drop-off has an evident relationship to the circumstance, while a request that has no discernible connection to the stated circumstance may not attract the statutory process at all. The connection is a question to raise in discussion rather than a reason to close the file, because the employee may simply have described the position poorly.

The Fair Work Ombudsman's summary of flexible working arrangements and its fact sheet on requests for flexible working arrangements are workable starting points for a manager briefing. The operative detail for a decision sits in the Act and in any applicable instrument.

A statutory request must be in writing, set out the change in working arrangements being sought, and state the reasons for the change. Those three elements are the whole of the formal requirement. There is no prescribed form, no requirement that the employee cite the section, and no requirement that the employee use the words "flexible working arrangement".

An email to a supervisor that describes the change sought and the reason for it can satisfy the requirement. So can a completed internal form. A verbal conversation does not, but the appropriate response to a verbal request is to help the employee put it in writing rather than to let the conversation lapse.

Treating an imperfect request as a nullity is a poor control. Where the writing is unclear about the change sought, or the reasons are thin, ask for the missing element in writing, confirm what the employee wants, and record when the completed request was received. Where the employee is genuinely ineligible, or the request falls outside the statutory circumstances, the statutory process does not automatically apply, but the request may still need to be considered under a policy, an award or enterprise agreement term, an anti-discrimination obligation, or a workplace adjustment obligation. Those pathways run on their own terms and their own timeframes.

One operational exposure in this process is a request sitting in a line manager's inbox while the 21-day clock runs. The intake step should therefore be owned centrally and be short.

A workable intake sequence is that any manager who receives a request, in any form, forwards it to the nominated owner on the day it is received; the owner date-stamps it, records the receipt date and the response due date on a central register, and acknowledges receipt to the employee in writing; the owner then classifies the request as an eligible statutory request, a request needing clarification, or a request to be dealt with outside the statutory process, and records the basis for that classification.

Acknowledgement is not the written response required by the Act. It is a short note confirming that the request has been received, naming who will deal with it, and proposing a time to discuss it. Keeping those two documents distinct avoids an early holding email being treated internally as though the response obligation has been discharged.

The written response is due within 21 days of the request being made. That period covers the discussion, the assessment and the drafting, so the internal milestones need to sit well inside it. A practical allocation is contact and a scheduled discussion within the first five days, the discussion held by day ten, internal assessment and any operational testing completed by day fifteen, and the written response approved and sent by day eighteen.

Deadline ownership belongs to one named role rather than to the responsible manager, because the manager is also the person whose operational constraints are being examined. The register should show the request date, the due date, the owner, the discussion date, the assessment status and the date the written response was sent.

Where the assessment cannot be completed in time, the position is that the obligation still falls due. The employer may agree different arrangements with the employee, including an interim arrangement while a longer assessment or trial is completed, but any such agreement should be recorded and should not be presented to the employee as an extension of the statutory deadline.

Discussion with the employee is a precondition of any refusal, and it also produces the information the assessment depends on. It should be scheduled rather than ad hoc, held by someone who can speak to the operational position, and recorded in a short file note sent to the employee afterwards.

The discussion should establish what outcome the employee is actually seeking, because the written request often describes one solution rather than the underlying need. It should clarify the practical parameters: which days, which hours, from when, for how long, and whether the arrangement is expected to be permanent or to change as circumstances change. It should identify the operational constraints candidly, so that the employee can respond to them, and it should test whether any variation on the request would meet the need.

Information gathering should be limited to what is reasonably necessary to assess the request. There is no general entitlement to interrogate an employee's domestic arrangements, and requests for supporting information should be proportionate to the change sought and directed to the assessment rather than to verification of the employee's private life.

Where the circumstance relied on is disability, pregnancy, carer responsibility for a person with a health condition, or family and domestic violence, the discussion will touch sensitive information. Handle it on a need-to-know basis, record only what the assessment requires, store it separately from the general personnel file, and restrict access to the people making the decision.

Two boundaries are worth stating internally. Information about the employee's disability or health is relevant to the adjustment being considered, not to the employee's general suitability for the role, and it should not migrate into performance or conduct discussions. Information disclosed about family and domestic violence carries safety implications, and the handling of that information, including who is told that an arrangement has changed and what reason is given, should be settled with the employee.

Where a request connected with disability is under consideration, other obligations may also be engaged, including anti-discrimination obligations and any adjustment duty that applies. Those obligations run alongside the statutory request process rather than being satisfied by it. Where a complaint is raised about how the request has been handled, the process discipline set out in our guide to managing discrimination and harassment complaints applies to that complaint on its own terms.

The obligation to genuinely try to reach an agreement is not satisfied by a single yes-or-no assessment of the arrangement as described. Where the request as framed presents a real operational obstacle, the question becomes whether a variation would meet the employee's need and the operational requirement at the same time.

Variations worth testing are structural: a different distribution of the same hours, a different start and finish pattern on some days rather than all, a fixed pattern rather than a variable one so that rostering and coverage can be planned, a partial arrangement pending recruitment or system change, or a change of duties within the role where the constraint attaches to a particular task rather than to the role as a whole.

A trial can be a sensible way to test an arrangement where the operational impact is genuinely uncertain. Its terms need to be clear: what is being trialled, from when, for how long, what will be assessed at the end, and what happens next. A trial should not be used as a way of deferring the written response, and the employee should not be left uncertain about whether the arrangement will continue. Where a trial is agreed, that agreement is itself an agreed change and should be recorded in the written response.

Before refusing a request, the employer must have regard to the consequences of the refusal for the employee. This is a distinct requirement, and it is separate from the assessment of business grounds. It requires the decision-maker to identify and record what refusal would mean for this employee in their circumstances.

The relevant consequences are practical and specific: whether the employee could continue to meet the care or support responsibility, whether the health or disability need would remain unaddressed, what the effect on safety would be where family and domestic violence is the circumstance, and whether the employee's continued participation in the role would be affected. General statements that refusal would be inconvenient do not show that the requirement was met.

Recording the analysis matters as much as performing it. A short section in the internal assessment note, written before the decision is made, showing what was identified and how it was weighed against the operational position, is the record that demonstrates the requirement was addressed.

Reasonable business grounds are not exhaustively defined. The Act gives examples: that the new working arrangements would be too costly for the employer; that there is no capacity to change the working arrangements of other employees to accommodate the request; that it would be impractical to change the working arrangements of other employees, or to recruit new employees, to accommodate the request; that the new arrangements would be likely to result in a significant loss in efficiency or productivity; and that they would be likely to have a significant negative impact on customer service. Whether a ground applies depends on the size and nature of the enterprise and on the facts.

None of those examples establishes a ground on its own. A ground becomes reasonable when it is particularised against the role, the workplace and the request. Cost means identified cost items and an estimate attributable to this change, not an assertion that flexibility is expensive. Capacity means the specific roster or coverage requirement and what was tested with other employees. Impracticality means what recruitment or reallocation was considered and why it does not work here. Efficiency or productivity loss means the tasks affected, the interdependency at issue and the basis for saying the loss would be significant. Customer service impact means the service commitment involved, the coverage window and the effect the change would have on it.

The evidence needed is ordinary operational material: rosters and coverage records, service-level commitments, workload and volume data, the terms of the applicable instrument, recruitment history for the role, and notes of what was tested with the team. Where a ground rests on an assumption rather than evidence, the assessment should say so and the assumption should be tested before it becomes the reason for refusal.

The matrix below is a working aid for the person assessing the request. Each row pairs an element of the request with the information to examine, the operational question to answer, and the record to retain.

The written response takes one of three forms, and each has its own content requirements.

An approval states that the request is granted, sets out the arrangement in operational terms, and records the start date and any review date. It should describe the arrangement precisely enough that a new manager could administer it without reconstructing the discussion.

An agreed variation states the changes to working arrangements that the employer and employee have agreed instead of the change requested. The agreed arrangement must be set out in the response, and the record should show that the employee agreed to it rather than acquiesced in a substitute.

A refusal must state that the request is refused, include details of the reasons for the refusal, explain the particular business grounds relied on and how those grounds apply to the request, and either set out the changes to working arrangements the employer would be willing to make that would accommodate the employee's circumstances, or state that there are no such changes. It must also include the information the Act requires about the effect of the relevant provisions and the dispute resolution pathway, including the ability to apply to the Fair Work Commission.

Two drafting disciplines apply. The response should address the request the employee actually made, in its own terms, rather than a generalised version of it. And the grounds section should show the application of the ground to this request, because naming a category without connecting it to the facts leaves the reasoning invisible to the employee and to anyone who later reviews the decision.

This example is illustrative. It is not a case, a decided outcome or legal advice.

A logistics business receives a written request from a warehouse coordinator with four years of service. She is the parent of a child in year one and asks to start at 9.30am and finish at 5.30pm, rather than 7.30am to 3.30pm, on all five days. The reason stated is the school drop-off.

The request is eligible on its face and relates to the circumstance. The operational examination shows that the constraint is not uniform across the week: the inbound freight window that requires a coordinator on the floor at 7.30am operates on Monday, Wednesday and Friday, while Tuesday and Thursday start with stock reconciliation that is not time-critical. The costing note identifies no additional cost for a later start on two days. The coverage analysis shows that a second coordinator can take the early window on one further day but not on all three.

The discussion turns on whether the underlying need is a 9.30am start on every day or a workable drop-off arrangement. The employee explains that a 9.15am start would meet the need, and that another parent can take the drop-off on two mornings a week if the pattern is fixed and known in advance.

The assessment records the consequences of refusal for the employee, the coverage evidence for the three inbound days, and the options tested with the team. The employer's response, sent on day sixteen, sets out an agreed variation: a 9.15am start on Tuesday and Thursday, a 7.30am start on the remaining three days, the pattern fixed for twelve months with a review at six months, and a commitment to reconsider the Monday start if the second coordinator's roster changes. Whether that response would withstand scrutiny would depend on the evidence and the reasoning behind it, not on the shape of the outcome.

This example is illustrative. It is not a case, a decided outcome or legal advice.

A professional services firm receives a written request from a senior analyst with a disability affecting mobility and fatigue. He asks to work from home three days a week and to attend the office on two nominated days. The reason stated refers to his disability and to the effect of daily commuting on fatigue levels.

Eligibility is not in issue on these constructed facts. The assessment questions are what the office attendance is for, and whether the tasks that require attendance can be scheduled on the nominated days. The examination identifies client meetings, supervision of two junior analysts, and a weekly review session that has always been held in person. Volume data shows that client meetings are concentrated on two days, and that the review session could move to either nominated day.

The information-handling questions arise at the same time. The firm limits the information it seeks to what is needed to assess the arrangement, keeps the medical material separate from the personnel file, and settles with the employee what the team will be told about the pattern. It also recognises that anti-discrimination obligations and any adjustment duty operate alongside this process, and that a refusal reasoned only by reference to a preference for office attendance would need to be justified on the statutory grounds and would sit poorly with those separate obligations.

The supervision constraint is tested rather than assumed. Two options are examined: relocating the supervision sessions to the nominated in-office days, and running one of them remotely with a fortnightly in-person session. The response approves the arrangement with the review session moved to a nominated day, records the supervision approach, sets a six-month review point, and confirms the equipment and workstation arrangements that apply at the home location. The outcome here follows from the evidence gathered about the tasks, and a different task profile could support a different answer.

An approved arrangement needs to be administered rather than filed. The written record should state the arrangement, the start date, the duration or the review date, the hours and location pattern, the outputs or responsibilities that remain unchanged, and any equipment, workstation or expense arrangement that applies where the location has changed.

Reviews should be scheduled at the outset and framed around what will be examined: whether the arrangement is meeting the employee's need, whether the operational assumptions have held, and whether anything about the role or the coverage requirement has changed. A review is not a periodic reconsideration of whether flexibility should exist.

Whether an agreed arrangement can later be changed, and how, depends on the terms recorded in the written response, any trial or review provision, the contract of employment, any applicable modern award or enterprise agreement, the status of the arrangement under policy, and any other legal obligations engaged by the change. A change should not be made merely because a manager changes or a preference shifts; consultation and agreement may be required depending on those sources. Where the operational basis genuinely changes, the appropriate path is to raise the change with the employee, discuss it, and reach a further agreement where that is required, with the same care applied to consequences and reasons. Where the change is being made at the policy level rather than individually, the notice and consultation discipline set out in our guide to updating workplace policies applies to that change.

Performance under a flexible arrangement is assessed against the outputs of the role, on the same basis as any other employee. Where a performance concern arises, it should be dealt with through the ordinary process described in our guide to performance management and procedural fairness, and not through withdrawal of the arrangement.

The controls that hold this process together can be specified in a short set of rules. One nominated owner holds every live request and the response deadline. Managers are instructed to forward requests on the day of receipt and not to answer entitlement questions themselves. A single register records receipt, due date, discussion, assessment status and outcome. A standard assessment note and three response templates keep the required content in place.

Escalation should be defined by content rather than by seniority alone. A proposed refusal, a request connected with disability or family and domestic violence, a request that would set a pattern across a team, and any request where the assessment is not complete by day fifteen are all matters that warrant review by someone other than the responsible manager before the response goes out.

Consistency across the business is worth monitoring, because divergent outcomes on similar requests are difficult to explain when they are examined later. A periodic review of decisions made, grounds relied on and outcomes by cohort gives the business the information it needs to correct drift while it is still small.

Section 65B applies to a dispute about a statutory request where the employer has refused the request, or where 21 days have passed since the request was made without the employer giving the written response required by s 65A. In the first instance, the parties are required to attempt to resolve the dispute at the workplace level by discussions between them. A disagreement about whether the statutory requirements were met does not by itself create that jurisdiction, although the adequacy of a refusal or response can be examined within a dispute that meets the statutory trigger, consistently with s 65C(1)(e).

If the workplace discussions do not resolve the dispute, a party may refer it to the Fair Work Commission under s 65B(3). After a referral, the Commission must first deal with the dispute by means other than arbitration, such as mediation or conciliation, or by making a recommendation or expressing an opinion, unless there are exceptional circumstances. The exceptional circumstances qualification in s 65B(4)(a) concerns how the Commission deals with the dispute after referral. It does not permit a party to bypass the workplace level discussions before referring the dispute.

Where the dispute is not resolved by those means, the Commission may arbitrate the dispute in accordance with s 65C. Arbitration does not depend on the parties agreeing to it. The orders available are defined and limited: the Commission may make an order that the employer grant the request, or that the employer make specified changes to accommodate the employee's circumstances, but only where the statutory conditions in s 65C are satisfied, including the limits in s 65C(3) on when such an order may be made. An employer preparing for a dispute should read ss 65B and 65C directly rather than relying on a summary. The Commission's page on flexible work and unpaid parental leave requests sets out the process, and its Form F10C page covers the application itself.

The material available in a dispute includes the discussion note, the assessment, the consequences analysis, the evidence behind the grounds and the response letter. Those documents show what the employer did and why, and they can only be created at the time.

The statutory process is a floor. A modern award or enterprise agreement may contain its own flexible work provisions, and a contract or policy may promise more. Those instruments can provide additional procedures or better entitlements, and they cannot reduce the NES entitlement.

A flexible working arrangement under Division 4 is a different mechanism from an individual flexibility arrangement made under a flexibility term in a modern award or enterprise agreement. An individual flexibility arrangement varies the effect of specified instrument terms for an individual employee and has its own requirements, including the better off overall test and its own termination rules. Approving a flexible work request does not create an individual flexibility arrangement, and an individual flexibility arrangement is not a substitute for responding to a statutory request.

Section 66 provides that the NES flexible work provisions are not intended to exclude or limit the operation of a State or Territory law that provides employees with a more beneficial entitlement in relation to flexible working arrangements. Where an employer operates across jurisdictions, that point should be checked rather than assumed.

A request, and the way it is handled, can also engage general protections, discrimination law and contractual questions depending on the facts. Where the circumstance relied on involves caring responsibilities, the interaction with leave entitlements may also arise, and the notice and evidence questions that go with leave are dealt with separately in our guide to personal leave disputes. Those matters are distinct from the request process and should be assessed on their own terms.

AWS supports employers with the operational side of this obligation: designing the intake and register, drafting the assessment note and the three response templates, briefing managers on what to forward and what not to answer, and reviewing proposed refusals before they are sent.

Where obligations, controls, decisions and evidence are held in Strobe, the AWS governance, risk and compliance platform, the flexible work register and its response deadlines sit alongside the rest of the employment obligations register, so a live request is visible to the people accountable for the response rather than to one manager's inbox.

The law requires a genuine process, a reasoned decision and a written response inside 21 days. An employer that owns the deadline centrally, discusses the request properly, particularises its grounds and writes a response that addresses what was actually asked has done what the provisions require, whichever way the decision goes.