Flexible Work Arrangements and Your Legal Obligations

Fair Work laws have strengthened employee rights to flexible work arrangements. Learn how to manage requests properly and reduce legal risk.

Flexible Work Arrangements:

Understand your legal obligations and employee rights around flexible working arrangements under the Fair Work Act.

Flexible work is a legal right in Australia. Recent changes to the Fair Work Act mean that employers have new responsibilities when responding to flexible work requests. If you’re not following the correct process, you may be exposing your business to unnecessary legal risk.

Who can request flexible working arrangements:

Flexible working requests are available to all employees, but certain employees have a legal right to request flexibility under the Fair Work Act. This includes:

• Parents or guardians of school-aged or younger children
• Carers, as defined by the Carer Recognition Act
• Individuals aged 55 or older
• People with a disability
• Employees experiencing family or domestic violence
• Employees supporting someone experiencing family or domestic violence
• Casual employees who have worked regularly for at least 12 months and have a reasonable expectation of ongoing work

Laws for responding to flexible work requests:

In 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act introduced changes to the Fair Work Act 2009, expanding employees’ rights to request flexible work arrangements. Under section 65 of the Act, this right is now an enforceable workplace entitlement. The Fair Work Commission also gained new powers to resolve disputes, including the ability to issue binding decisions if a request is unreasonably refused.

To comply, employers must ensure that any request is handled through a proper process. Requests must be made in writing and include both the specific change being sought and the reason. Employers are required to respond in writing within 21 days, providing detailed reasoning if the request is declined. They are also expected to genuinely consult with the employee before making a final decision.

Real-life examples and Fair Work Commission rulings:

1. Ridings v FedEx [2023] FWC 2231: In one of the first applications of the new laws, FedEx refused a flexible work request without providing a meaningful explanation. The employer cited “operational needs” but failed to outline any specific reasons. The Fair Work Commission ruled in favour of the employee, ordering that the request be granted. The key issue was a lack of detail and failure to consult, both of which are now enforceable requirements genuinely.
2. Ambulance Victoria v Natasha Fyfe [2023] FWCFB 104: Ms Fyfe, a mother of three, requested changes to her roster to support parenting responsibilities. Her employer declined without exploring alternatives or providing evidence of operational impact. The Commission found that the organisation failed to meet its obligations under the amended Fair Work Act and reinforced the importance of meaningful consultation when responding to flexible working arrangements.
3. Jordan Quirke v BSR Australia Ltd [2023] FWC 1337: Quirke, a new parent, requested two days of remote work per week. The employer rejected the request, citing operational impact but offering no documentation or discussion. The Fair Work Commission found the refusal to be invalid, noting that the employer had failed to provide detailed reasons or engage with the employee to consider alternatives.

These are not isolated cases from large corporations. They are real warnings for every business. If you don’t respond to flexible work requests in line with the law through consultation, documentation, and detailed reasoning, you put your business at risk.

“Flexibility isn’t just a legal obligation—it’s a leadership opportunity. When you support your people, your business grows too.”

 

• Kylie, Managing Director, DreamStoneHR

Make flexibility work for your business

Remaining compliant with flexible work arrangements:

1. Have the conversation: Start with a genuine conversation to understand the employee’s needs. Listening openly and exploring options shows good faith and can reduce the risk of disputes.
2. Explore alternatives: If the request can’t be granted in full, consider whether a modified version could be a suitable alternative. Trial periods or partial changes can demonstrate flexibility.
3. Document the process: Keep written records of the request, your discussions, the decision made, and the rationale behind it. This is important for compliance and transparency.
4. Respond in writing: Employers must respond within 21 days. If refusing the request, the response must clearly outline:
   1. The business grounds for refusal
   2. Why those grounds are reasonable
   3. What alternatives were considered
5. Train your managers: Managers and team leaders should be equipped to handle requests appropriately. Consider providing simple checklists or training to guide them through the process.

What if you get it wrong?

If you don’t follow the correct process, employees may escalate the issue to the Fair Work Commission. This could result in:

• Conciliation, where the Commission facilitates a discussion between parties
• Arbitration, where the Commission makes a binding decision

Even if you believe your decision was fair, failing to follow the legal process can result in costly and time-consuming outcomes.

Building a flexible work culture:

Complying with the law is essential, but embracing flexibility can also boost retention and strengthen your employer brand. Employees who feel supported are more likely to stay, contribute, and speak positively about your workplace.

Flexibility isn’t just a policy, it’s a signal that you trust your team and value work-life balance. That can set you apart in a competitive hiring market. If your team is embracing working from home, it is important to ensure your business is structured to support productivity, legal compliance, and a safe working environment.

HR advice for flexible work policies:

If you’re unsure whether your flexible work arrangements are compliant, or if you’re seeing an increase in requests, now is the time to take action. A well-documented policy and a trained leadership team can protect your business and improve workplace satisfaction.

If you’re looking for extra guidance, our free resources offer practical checklists and templates to simplify and reduce the stress of managing HR.