Your obligations when an employee requests flexible work

An employee has asked to change their hours, work from home, or move to part-time. It can be tempting to treat that as an informal request you handle with a quick email. If the employee is eligible under the Fair Work Act 2009 (Cth), however, you are dealing with a formal legal process that comes with deadlines you cannot ignore.

The core obligation is straightforward: when an eligible employee makes a written request for flexible working arrangements, you must give them a written response within 21 days, and you can refuse only on reasonable business grounds after genuinely trying to reach agreement. Get the process wrong and the Fair Work Commission can step in, arbitrate the dispute, and order you to grant the change. This guide covers when the obligation applies, the three duties it imposes on you, and the consequences of missing a step.

When the flexible work obligation applies

The right to request flexible work sits in the National Employment Standards, which apply to national system employers. In practice, that means most private-sector employers in Australia, including small businesses.

Not every employee can make a request that triggers these obligations. To be eligible, an employee must meet a service threshold and their request must relate to one of the circumstances listed in s 65 of the Fair Work Act 2009 (Cth).

The service threshold

Non-casual employees: the employee must have completed at least 12 months of continuous service with you immediately before making the request.
Casual employees: the employee must be a regular casual employee who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months, and must have a reasonable expectation of continuing employment on a regular and systematic basis.

The circumstances that qualify a request

the employee is pregnant;
the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
the employee is a carer;
the employee has a disability;
the employee is 55 or older;
the employee is experiencing family and domestic violence; or
the employee is providing care or support to a member of their immediate family or household who requires care or support because of family and domestic violence.

The law also makes clear that an employee returning to work after parental leave may request part-time work to care for their child. The request must be made in writing and must set out the details of the change sought and the reasons for the change.

Two points worth noting. First, any employee can raise flexible work informally, but only employees who meet the service threshold and qualify under one of the circumstances above get the statutory protections, including the 21-day response duty. Second, if a request arrives verbally, you are not obliged to run the formal process, but engaging constructively is almost always the better course, because the request may simply be the start of a conversation that produces a workable arrangement.

Duty one: respond in writing within 21 days

Under s 65A of the Fair Work Act 2009 (Cth), once an eligible employee makes a written request, you must give them a written response within 21 days. The clock starts running from the day the request is made, not from when you get around to reading it.

The response must do one of three things:

state that you grant the request;
if you and the employee have discussed the request and agreed on a different change, set out the agreed change; or
subject to the discussion and grounds requirements below, state that you refuse the request and include the detail the Act requires.

A response that says nothing, or a reply that is months late, is not just discourteous. It is a breach of the statutory scheme, and it gives the employee a live dispute they can take to the Fair Work Commission. Diarise the deadline the day the request arrives and keep a copy of everything exchanged. If you need more time to consider the request, the Act does not provide for extensions, so the practical answer is to discuss the request promptly and make your decision within the window.

Duty two: discuss the request and genuinely try to reach agreement

You cannot simply send a refusal letter. Under s 65A(3), you may refuse a request only if all of the following are true:

you have discussed the request with the employee;
you have genuinely tried to reach an agreement with the employee about making changes to accommodate the circumstances behind the request;
you and the employee have not reached such an agreement;
you have had regard to the consequences of the refusal for the employee; and
the refusal is on reasonable business grounds.

In other words, refusing without a conversation is a legal error, regardless of how strong your business case might be. A genuine discussion means more than telling the employee your answer is no. It means exploring the options, understanding the employee's reasons, and testing whether some version of the change could work. The Act does not require you to agree to anything: s 65A(4) confirms you are not obliged to agree to a change if you would have reasonable business grounds for refusing it. But you must actually engage with the request before you can lawfully decline it.

Duty three: refuse only on reasonable business grounds

If you refuse, the refusal must be based on reasonable business grounds. The Act sets out the grounds that will count, without limiting what else might qualify:

the new working arrangements would be too costly for you;
there is no capacity to change the working arrangements of other employees to accommodate the request;
it would be impractical to change the working arrangements of other employees, or to recruit new employees, to accommodate the request;
the new arrangements would be likely to result in a significant loss in efficiency or productivity; or
the new arrangements would be likely to have a significant negative impact on customer service.

The size and nature of your business matters when assessing these grounds. The Act itself gives the example that a small business with only a few employees may have no capacity to change other employees' arrangements, which can support a refusal. A vague sense that the change would be inconvenient is not enough. The grounds need to be real, particular to your business, and capable of being explained.

The refusal letter is where most employers fall short. Under s 65A(6), a refusal response must include:

details of the reasons for the refusal;
your particular business grounds for refusing;
an explanation of how those grounds apply to the request;
the changes, other than the requested change, that you would be willing to make to accommodate the employee's circumstances, or a statement that there are no such changes; and
information about the employee's dispute rights.

That last point matters. A refusal that simply says "we cannot accommodate this" without explaining why will be treated as an inadequate response, and the Commission can order you to provide a proper one. Consider also whether you can offer something short of the full request, such as a trial of the arrangement or a compromise on hours, because the letter must address what alternatives you are willing to offer.

Separate state laws can add another layer. In Victoria, for example, s 19 of the Equal Opportunity Act 2010 (Vic) makes it unlawful for an employer to unreasonably refuse to accommodate an employee's responsibilities as a parent or carer, even where the request falls outside the Fair Work Act framework. Other states have comparable protections through their anti-discrimination laws, so it is worth checking the position in your jurisdiction before finalising a refusal.

What happens if you get it wrong

The enforcement scheme was significantly strengthened by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), and it applies to requests made on or after 6 June 2023. If you refuse a request, or 21 days pass without a written response, the employee can start a dispute about the operation of the flexible work provisions.

The process has defined stages. First, the employee must attempt to resolve the dispute at the workplace level through discussions. If that fails, either party can refer the dispute to the Fair Work Commission. The Commission must first deal with the dispute by conciliation or another non-arbitral process unless there are exceptional circumstances. If conciliation does not resolve the matter, the Commission can arbitrate and make binding orders.

The orders available in arbitration are significant. The Commission can:

order that you be taken to have refused the request (where you never responded);
declare that the grounds for your refusal were, or were not, reasonable business grounds;
order you to take further steps to respond properly to the request; and
order you to grant the request, or to make specified alternative changes, where there is no reasonable prospect of the dispute being resolved without such an order.

Contravening an order of the Commission is a breach of a civil remedy provision, which means penalties can follow. During the process, either party can be represented by a lawyer or paid agent only with the Commission's permission, so many employers end up navigating the conciliation stage without counsel and engaging lawyers only once arbitration looms.

There is also a wider risk. Making a request for flexible work is a workplace right under the general protections provisions of the Act. Section 340 prohibits you from taking adverse action against an employee because they exercised that right. Adverse action includes dismissing the employee, injuring them in their employment, or altering their position to their prejudice. Dismissing an employee shortly after they make a flexible work request, or cutting their shifts in response, can expose you to a general protections claim even if the request itself was lawfully refused. These claims carry their own civil penalties and can be costly to defend.

A compliance checklist for flexible work requests

If a request lands on your desk, work through these steps:

Check eligibility: confirm the employee meets the service threshold and that the request relates to a qualifying circumstance.
Acknowledge in writing: record when the request was made and diarise the 21-day deadline.
Meet with the employee: discuss the request, the reasons behind it, and the options before you decide anything.
Consider alternatives: work out what you could offer, even if the full request is not workable.
Test the grounds: if you intend to refuse, identify the specific reasonable business grounds and how they apply to this request.
Draft the refusal letter properly: include the reasons, the particular grounds, how they apply, any alternatives you would offer, and the employee's dispute rights.
Deliver within 21 days: send the written response in time, and keep a copy.
Be alert to retaliation: never treat the request as a reason to change the employee's role or shifts.

When to get legal help

The scheme is procedural, and the procedure is where employers get caught. A lawyer can review a draft refusal letter before it goes out, which is the cheapest point to fix a problem, because the letter must explain your grounds and alternatives in a way that will withstand scrutiny if the dispute reaches the Commission. A lawyer can also help you prepare for conciliation, assess whether your grounds are likely to be accepted as reasonable business grounds, and represent you in arbitration if it comes to that. If a request involves family and domestic violence, specialist advice is particularly worthwhile given the sensitivity of the circumstances and the strict rules around how the request must be handled.

The 21-day response is where employers come unstuck

Every element of this scheme matters, but the step that costs employers most is the one the Act makes simplest: the written response within 21 days. Miss the deadline and you lose the ability to argue the refusal was considered and reasonable, because the Commission can simply treat you as having refused, with no grounds on the record at all. A timely, properly reasoned response that shows you discussed the request and tested the alternatives is your strongest defence. If you do nothing else this week, diarise the deadline and start the conversation, because a genuine discussion is both a legal requirement and the best chance of an outcome that works for everyone.