Flexible Work Arrangements under the Fair Work Act 2009 (Cth)

Introduction

These days, the traditional view of working 9-to-5 takes many forms. Flexible, hybrid, remote… These changes in workplace practices have necessitated corresponding amendments to the Fair Work Act.

Relevant Legislation

Under the Fair Work Act2009 (Cth) (“FW Act”), eligible employees have the right to request flexible working arrangements where their circumstances warrant it. This provision is intended to promote work-life balance while allowing businesses to consider operational realities.

Who is an eligible employee under the FWA?

Employees can request flexible work arrangements if they have completed at least 12 months of continuous service (or are a long-term casual with a reasonable expectation of continuing employment) and fall into one of the following categories:

• Are pregnant
• Are a parent or carer of a child of school age or younger;
• Have a disability;
• Are aged 55 or older;
• Are experiencing family or domestic violence; or
• Are providing are or support to an immediate family or household member experiencing family domestic violence.

Employer obligations and grounds for refusal

When an eligible employee makes a valid request, the employer must respond in writing within 21 days. The employer must discuss the request with the employee and genuinely try to reach an agreement about changing the employee’s work to accommodate the employee’s circumstances. The employer may only refuse the request after considering the effect of the refusal on the employee and having reasonable business grounds, which may include:

• The request would be too costly to accommodate;
• There would be a significant negative impact on productivity, customer service or operational efficiency;
• The changes would be impractical to implement given the nature of the work or the workforce; or
• The request would result in significant changes to other employees' working arrangements.

An example of an inadequate refusal

Suppose a long-term employee requests to work from home one day per week to manage school pickups. The employer denies the request, citing “team culture” without further explanation or evidence, and fails to engage in any discussion about alternatives. Such vague reasoning is unlikely to satisfy the “reasonable business grounds” requirement. It could expose the employer to legal risk. The Fair Work Commission has clarified that superficial or unsupported refusals will not withstand scrutiny.

Case Law Insights

A recent Fair Work Commission decision provides employers with helpful guidance on how to approach flexible work arrangement requests.

Application by an Employee for Flexible Work Arrangements [2025] FWC 1125

In this matter, a healthcare professional sought to work remotely via telehealth after relocating for safety reasons due to family and domestic violence. The applicant had sole care of her child, and an ADVO against the perpetrator prohibited him from approaching her workplace—an already breached order. The employee outlined her capacity to continue delivering services remotely.

The Commission acknowledged the applicant's right to make the request and her distress over the employer’s refusal. However, it accepted that the employer acted lawfully in declining the arrangement, having demonstrated “reasonable business grounds,” including:

• Insufficient demand for the proposed telehealth services; and
• A material departure from the revenue-generating nature of her existing role

While the Commission sympathised with the applicant’s circumstances, it concluded that the FW Act does not permit overriding a lawful refusal based on established operational concerns.

Tips for Employers

To comply with the FW Act and avoid unnecessary disputes, employers should:

• Engage early and meaningfully: Discuss the employee's needs, explore all viable options, and record the consultation process.
• Assess the operational impact carefully: Identify whether the proposed arrangement would affect productivity, cost or efficiency—and document this analysis.
• Avoid generic refusals: A vague reference to "team cohesion' or 'business impact' is insufficient without evidence or explanation.
• Propose alternatives where possible: If the exact arrangement is not feasible, consider modified versions that partially meet both the employee's and employer's needs.
• Ensure consistency with policies and precedents: Make sure that past practices and internal policies align with how similar requests have been handled.

How Can Sharrock Pitman Legal Help?

Although the concept of flexible working has, in theory, been an option since arrival of laptops and mobiles; it is only in recent times that employers and employees have been navigating its practical application in the workplace.

The first step is to seek legal advice before disagreement escalates. Our Employment Law team is experienced providing advice to employers to ensure compliance with the Fair Work Act, including recent changes such as flexible working arrangements and the right to disconnect.

Please do not hesitate to contact us. Call 1300 205 506 or email sp@sharrockpitman.com.au.

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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. For advice tailored to your specific circumstances, please consult one of our qualified lawyers.

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