Quick Summary
Quick Summary
- Flexible work is a legal right under the Fair Work Act — any employee can request changes to hours, days, location, or pattern.
- You must respond in writing within 21 days. Silence is a breach and exposes you to general protections and unfair dismissal claims.
- Refusals must be based on genuine unjustifiable hardship (cost, operational disruption, safety, compliance) — not inconvenience, preference, or management culture.
- Explore alternatives before refusing. The FWC expects problem-solving; reflexive rejection is increasingly scrutinized and often overturned.
- Document your assessment process: request receipt, clarification, impact analysis, alternatives explored, final decision. Your paper trail is your defense.
Flexible work requests are no longer optional. Under the Fair Work Act 2009, eligible employees have a legal right to request flexible work arrangements — and employers must consider each request carefully. Failing to do so exposes you to unfair dismissal claims, general protections breaches, and adverse FWC decisions.
This guide tells you exactly what you must do, what grounds you can legitimately refuse on, and how to document your process so you’re protected.
Who Can Request Flexible Work?
Any employee can request flexible work. There’s no minimum service period, tenure requirement, or performance threshold. The Fair Work Act simply says: if an employee wants to change their working arrangements, they can ask.
What Counts as a Flexible Work Request?
Flexible work covers a wide range of arrangements:
- Hours. Fewer hours per week, part-time conversion, job-share, seasonal work.
- Days. Four-day weeks, compressed work weeks (e.g., four 10-hour days instead of five 8-hour days).
- Pattern. Roster changes, shift swaps, predictable scheduling instead of on-call patterns.
- Location. Work from home, hybrid arrangements, remote work for certain days/weeks.
- Start and finish times. Flexible hours, staggered start times, school drop-off/pick-up accommodation.
Your Legal Obligation: The Consideration Process
Here’s what the Fair Work Act requires:
1. You must consider the request.
2. You must provide a written response within 21 days.
3. You must give reasons if you refuse.
4. You must be satisfied on reasonable grounds that granting the request would cause unjustifiable hardship.
Legitimate Grounds for Refusal
You can refuse a flexible work request if you can demonstrate:
- Cost impact. Approval would create genuine, quantifiable costs (e.g., shift premium payouts, external backfill, equipment purchases) that outweigh business benefit.
- Operational disruption. The request directly undermines essential service delivery, customer coverage, or critical functions. Example: refusing a request to work 9–3 when you operate 8–6 and no one else covers 4–6pm.
- Staffing gaps. Approval would leave you unable to meet compliance, safety, or contractual obligations. Example: approval would breach maximum hours rules, leave insufficient trained staff for critical tasks.
- Safety or legal issues. The arrangement violates WHS law, tax/super rules, or contractual obligations to clients.
Weak refusal grounds (often overturned by FWC):
- “We’ve never done it before.”
- “Other staff might ask.”
- “It’s not standard in the industry.”
- “The manager prefers face-to-face contact.”
- “We can’t afford to backfill.”
📅 Important Deadline: 1 July 2026
Modern awards wage rates increase by 4.75% from 1 July 2026. If you’ve approved flexible work arrangements, ensure payroll is updated to reflect new minimum rates. Review any annualized salaries to confirm compliance with the new thresholds.
Key Takeaways
Key Takeaways for Employers
- ✓Acknowledge requests in writing within 3 days and respond with a decision within 21 days — no exceptions.
- ✓If you refuse, provide detailed, documented reasons grounded in genuine business hardship, not assumptions or preferences.
- ✓Explore alternatives: trial periods, phased implementation, role adjustments — show you’ve problem-solved before refusing.
- ✓Create a formal flexible work policy that defines the process, sets clear timelines, and explains refusal grounds.
- ✓Avoid any perception of retaliation: refusing a request and then targeting the employee for performance, culture fit, or dismissal is a high-risk combination.
- ✓Document everything: request details, team consultations, impact assessment, alternatives considered, final reasoning. This is your protection in FWC disputes.
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The FWC’s Approach: Recent Case Law (2026)
Recent Fair Work Commission decisions show the Commission is increasingly skeptical of employer refusals. In Peter Jones v Exclusive Contracting (WA) Pty Ltd [2026] FWC 253, the FWC found that the employer’s dismissal of an employee who sought flexible work was harsh, oppressive, and unfair — even though the employer claimed operational need.
- Did the employer consider the request? (Yes/No)
- Did the employer provide written reasons? (Yes/No)
- Are those reasons grounded in genuine business hardship? (Yes/No)
- Did the employer explore alternatives? (Yes/No)
How to Assess a Request: The 5-Step Process
Step 1: Request received?
Log the date. Set a 21-day deadline calendar reminder. Acknowledge receipt in writing within 3 days.
Common Traps (and How to Avoid Them)
Trap 1: Verbal responses.
Verbal “yes” or “no” isn’t enough. Even if the employee seemed satisfied, the FWC requires written confirmation. Do it every time.
What if the Employee Appeals?
If you refuse and the employee disputes the refusal, they may:
- Lodge a general protections claim (if they believe the refusal breaches their workplace rights).
- File an unfair dismissal case (if they’re subsequently terminated and believe the termination relates to the request).
- Seek FWC conciliation or arbitration.
- Your written response and reasoning.
- Evidence of your assessment process.
- The employee’s request and your team’s impact analysis.
- Whether alternatives were explored.
Best Practice: The Flexible Work Policy
If you don’t have a formal flexible work policy, create one now. It should:
- Confirm that eligible employees have a right to request.
- Outline the request process (written submission, what information to include).
- Set out the 21-day response timeline.
- Define “unjustifiable hardship.”
- List examples of legitimate refusal grounds.
- Explain the assessment process and how decisions are made.
- State that refusal reasons will be in writing.
- Confirm trial periods and review dates where applicable.
Key Takeaways for Employers
- You must consider every request. Silence or reflexive refusal is a breach.
- Respond in writing within 21 days. No exceptions.
- Provide detailed reasons if you refuse. Generic hardship claims don’t hold up.
- Unjustifiable hardship is the legal threshold, not inconvenience. Courts and the FWC differentiate sharply.
- Explore alternatives before refusing. The FWC expects problem-solving.
- Document your assessment process. If the employee challenges the refusal, your paper trail is your defense.
- Avoid any perception of retaliation. Refusing a request and then dismissing the employee is a high-risk combination.
Frequently Asked Questions
Yes. There’s no limit on the number of requests, though employers can ask for a reasonable gap between requests (e.g., a trial period or review date before reconsidering). Once you’ve implemented an arrangement and set a review date, the employee can request changes after that review window closes.
Probation doesn’t exclude them from requesting flexible work. You still have the same obligation to consider and respond within 21 days. However, you can take into account probation circumstances when assessing impact — for example, if the role requires intensive on-site supervision during the probation period, this may be a legitimate refusal ground.
Not on its own. If you’re genuinely unsure, trial the arrangement for a set period (e.g., 3 months) or seek external advice. ‘Not knowing’ isn’t hardship; it’s a knowledge gap. The FWC expects employers to problem-solve and test solutions, not reject them reflexively.
Yes, but carefully. You can’t revoke approval arbitrarily. If circumstances change significantly (redundancy, restructure, loss of a major client), you can revisit the arrangement — but you need a documented business reason and should discuss it with the employee beforehand. Revoking without notice or cause may trigger unfair dismissal claims.
The Fair Work Act doesn’t require them to justify the request. They don’t need to cite caring responsibilities or health reasons. A simple ‘I’d like to work 4 days instead of 5’ is sufficient. However, understanding their motivation can help you assess impact and explore alternatives, so asking is reasonable.
Each request is assessed on its merits. You can approve one and refuse another if the circumstances are genuinely different (e.g., one affects service delivery, the other doesn’t). However, you must be consistent in how you apply your refusal grounds — you can’t approve Monday–Thursday for Employee A and refuse it for Employee B without documented business reasons for the difference.
Only if that’s what the employee agreed to. You can’t unilaterally add conditions after approval. If the arrangement is ‘three 10-hour days instead of five 8-hour days,’ that’s what you deliver. Any changes must be discussed and agreed in advance.
Performance management applies equally to flexible and non-flexible workers. If performance issues arise, address them using your normal performance process (PIP, counselling, documentation). However, be careful not to target the employee for the flexible arrangement itself — the FWC will scrutinize whether the performance issue is genuine or retaliation for the request.
No. You assess each request based on your business. You might approve work-from-home but not job-shares, or approve reduced hours but not location changes. The test is whether granting the specific request causes unjustifiable hardship — not whether it’s feasible in theory.
Send a follow-up within 5–7 days and set a deadline (e.g., ‘Please clarify by [date] or I’ll proceed with the information I have’). Document all communication. If they still don’t respond, you can make a decision based on what you do know — but note in your response that clarification was requested and provide them a chance to revisit the decision if circumstances change.
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