Quick Summary
Quick Summary
- Employees with 12+ months’ service have the legal right to request flexible work under the Fair Work Act.
- You must genuinely consider requests and respond within 21 days with documented business grounds if you refuse.
- Valid reasons to refuse include inability to cover shifts, significant cost impact, or loss of service quality—not ‘policy’ or assumption.
- Parents of young or school-aged children have a specific legal right; refusing requires strong business grounds.
- Refusing inconsistently or without documentation invites unfair dismissal, discrimination, or adverse action claims.
Your employee asks to work from home two days a week. Another requests job-sharing after coming back from parental leave. A third wants to shift their hours to 9–3 instead of 9–5.
Under the Fair Work Act 2009, they have the legal right to make these requests—and you have legal obligations in how you respond. Get it wrong and you could face unfair dismissal claims, general protections breaches, or adverse action complaints.
This guide explains what the law actually requires, how to assess requests fairly, and how to say no when there are genuine business grounds—without legal risk.
Who Can Request Flexible Work?
Any employee who has been with you for at least 12 months can request flexible working arrangements. This includes:
- Full-time employees
- Part-time employees
- Employees on fixed-term contracts
The request can cover:
- Changes to hours (9–5 to 8–4, shift patterns)
- Working location (office to home, hybrid)
- Job-sharing or part-time conversion
- Carer’s leave arrangements
- Any other arrangement that suits both parties
Parents of children under school age—or school-aged children—have a specific legal right to request flexibility, but the law is broader than that.
The Legal Test: What You Must Do
Under section 65 of the Fair Work Act, you must:
- Genuinely consider the request (not reject it out of hand)
- Have regard to the employee’s circumstances and the business impact
- Respond within 21 days (or a timeframe you both agree on)
- Provide reasons if you refuse—and those reasons must be based on reasonable business grounds
What is not a valid reason to refuse:
- “That’s not how we do things here”
- “Other employees might ask too”
- “I don’t think remote work is productive”
- “We’ve never had flexible arrangements”
What is a valid reason:
- Genuine inability to cover shifts (e.g., small medical practice where one doctor cannot be absent)
- Significant cost impact you can document
- Loss of service quality your customers have paid for
- Safety or security risks specific to the role
The 21-Day Timeline
From the date you receive the request, you have 21 days to:
- Meet with the employee (if needed)
- Assess the impact
- Make a decision
- Notify them in writing
If you agree, record the new arrangement in writing. If you refuse, state your business-grounds reasons in writing and give them a copy.
Missing the 21-day deadline does not automatically mean you’ve breached the law, but it strengthens their case if they later claim you didn’t genuinely consider the request. Courts and the Fair Work Commission look at whether there was a fair process.
Common Scenarios: How to Respond Fairly
Scenario 1: “I want to work from home three days a week”
If the role is genuinely office-based (e.g., team collaboration, client meetings), you can refuse—but explain why. “We’ve assessed this and found that client meetings and team collaboration require your presence. We’d be happy to discuss one day per week from home if that helps.”
If the role is suitable for remote work, refusing without real grounds invites a claim that you didn’t genuinely consider it.
Scenario 2: “I want to switch to 4-day weeks after my parental leave”
Parents have a named legal right here. You must consider it seriously. If you refuse, your business grounds must be rock-solid and documented. Refusing simply because “we need five days” is unlikely to stand up.
Scenario 3: “I need to leave at 3pm every Tuesday for a medical appointment”
This is reasonable and usually easy to accommodate. If you can’t, you need a specific reason (not a blanket “no”). An employee with a genuine medical need has stronger grounds to argue unfair dismissal or discrimination if you refuse without cause.
⚠️ Important: Closing Loopholes Act Changes
Since June 2023, amendments to the Fair Work Act have strengthened flexible work rights. Employers must now genuinely consider requests and have regard to both the employee’s circumstances and business impact. Refusing without documented business grounds is risky.
Key Takeaways
Key Takeaways for Employers
- ✓Implement a written flexible work policy that sets out your process and assessment criteria.
- ✓Train managers on the 21-day rule, genuine consideration test, and documentation requirements.
- ✓Document every flexible work request: the request itself, your assessment, your decision, and business grounds.
- ✓Offer trial periods for new arrangements to test impact before making them permanent.
- ✓Refuse only with specific, documented business grounds—never blanket policy.
- ✓Keep records of all discussions and decisions to defend against FWC claims.
Fair Work Centre
Need employment law advice specific to your situation?
Our employment lawyers advise employers only — no call centres, no generalists. Get straight answers from people who know the Fair Work Act inside out.
How to Assess Requests Fairly
- Get the detail. Ask the employee for specifics: exact hours, when they start, how they’ll cover their work, whether they need any tech/equipment changes.
- Identify the real impact. What actually changes? Client handover times? Team collaboration? Service delivery? Be specific—do not generalise.
- Explore alternatives. “We can’t do full-time remote, but could you do three days in-office?” This shows you genuinely considered it.
- Document your assessment. Record your reasoning. This is your evidence if there’s later a dispute.
- Decide and communicate. In writing, within 21 days. If yes, record the new arrangement. If no, explain your business grounds.
Refusing Requests: The Legal Pitfalls
Refusing flexible work is not illegal—but the way you refuse matters.
Red flags that invite claims:
- Refusing all requests as policy (“We don’t do flexible work”)
- Refusing without documented business grounds
- Refusing a parent’s request without strong grounds
- Refusing requests inconsistently (allowing one, denying another similar one)
- Refusing and then hiring someone else for the same role on flexible terms
How to refuse safely:
- State your specific business grounds in writing
- Reference the employee’s request and your consideration of it
- Explain the genuine impact on your business
- Offer to revisit the request after a set period (e.g., “Let’s reassess in six months when we’ve hired additional staff”)
- Keep a record of the discussion and decision
Trial Periods and Reviewing Arrangements
You can agree to a flexible arrangement on a trial basis—e.g., three months. This is smart: it lets both parties test the arrangement without long-term commitment.
At the end of the trial, review the outcomes:
- Is service quality maintained?
- Are team dynamics working?
- Is the employee delivering?
If it is not working, you can revert—but do this fairly, with notice and discussion, not abruptly.
When Flexible Work Leads to Disputes
If an employee claims you:
- Didn’t genuinely consider their request
- Refused without valid business grounds
- Treated them less favourably because of a protected attribute (family responsibility, age, etc.)
- Took adverse action (cut their hours, passed them over for promotion) because they requested flexibility
…they can lodge a claim at the Fair Work Commission.
The FWC will examine:
- Whether you genuinely considered the request
- Whether your business grounds were reasonable and real
- Whether you followed a fair process
- Whether there is any unlawful motive (discrimination, adverse action, etc.)
Best Practice: Get Ahead of Disputes
- Have a flexible work policy. It should set out the process, the types of arrangements you’re open to, and how you assess requests. This shows you take the law seriously. See our HR best practice guide for template policies.
- Train managers. They need to know the 21-day rule, the genuine consideration test, and how to document decisions.
- Keep records. Store the request, your assessment notes, your decision, and any correspondence with the employee.
- Be consistent. If you approve a similar arrangement for one employee, be ready to explain why you refused another (or approve them both).
- Communicate changes clearly. When you agree to flexibility, document the new hours, location, reporting arrangements, and any trial period in writing. Review our employment contracts guide for drafting updated terms.
The Bottom Line
Flexible work requests are a permanent feature of modern employment. The law requires you to take them seriously—genuinely consider them, make fair decisions based on real business impact, and communicate clearly.
You can refuse requests, but only if you have documented, genuine business grounds. Refusing out of habit, policy, or assumption invites legal risk.
If you are unsure about a request, get legal advice early. It is cheaper than defending an unfair dismissal or discrimination claim later.
Frequently Asked Questions
Yes, but only if you have documented, genuine business grounds. Under the Fair Work Act, you must genuinely consider the request and respond within 21 days. Valid reasons include inability to cover shifts, significant cost impact, or loss of service quality. Invalid reasons include ‘we don’t do flexible work’ or ‘other staff might ask too.’ If you refuse without real business grounds, the employee can lodge an unfair dismissal or discrimination claim with the Fair Work Commission.
When an employee requests flexible work, you have 21 days from the date of request to consider it and respond. You must meet with the employee if needed, assess the impact, make a decision, and notify them in writing. The 21 days includes explaining your business grounds if you refuse. Missing this deadline doesn’t automatically breach the law, but it weakens your position if the employee later claims you didn’t genuinely consider the request.
Any employee who has been with you for at least 12 months can request flexible work. This includes full-time, part-time, and fixed-term contract employees. Parents of children under school age—or school-aged children—have a specific, named legal right to request flexibility, but the law applies to all employees after 12 months. Flexible work can include changes to hours, working location (home/hybrid), job-sharing, or carer’s arrangements.
Genuine consideration means you must actually assess the request on its merits, not reject it out of habit or policy. You should get details from the employee (exact hours, location, coverage plan), identify the real impact on your business, explore alternatives (‘Could you do three days in-office instead of five?’), and document your reasoning. You must then decide fairly and communicate your decision in writing with business grounds if you refuse. Simply saying ‘no’ without this process invites legal risk.
Yes, but you must have strong documented business grounds. Parents of young or school-aged children have a specific legal right to request flexibility under the Fair Work Act. The Fair Work Commission takes these requests seriously and will examine whether you genuinely considered the request and whether your refusal is based on real, not assumed, business impact. Refusing simply because ‘we need full-time staff’ is unlikely to stand up in a claim. Be specific about the actual impact.
You can review the arrangement—ideally after a trial period you both agreed to at the start. If it is not working, you can propose reverting to the original arrangement, but do this fairly and with notice. Have a discussion with the employee, explain what is not working (with specifics), and listen to their perspective. Abruptly cutting their hours or removing flexibility without notice invites claims of adverse action or unfair treatment. Keep records of the review discussion.
Yes, and it is smart practice. You can agree to a flexible arrangement on a trial basis—e.g., three months—so both parties can test it without long-term commitment. At the end of the trial, review the outcomes: Is service quality maintained? Are team dynamics working? Is the employee delivering? If it is not working, you can revert to the original arrangement. Document the trial period, the review date, and the outcomes in writing.
Yes. If an employee claims you didn’t genuinely consider their request, refused without valid business grounds, took adverse action, or discriminated against them because they requested flexibility, they can lodge a claim with the Fair Work Commission. The FWC will examine your process, your business grounds, and whether there was any unlawful motive. To protect yourself, keep detailed records of the request, your assessment, your decision, and any correspondence. A written flexible work policy and clear documentation are your best defence.
Join Fair Work Centre
Protect your business with the right HR support.
Join hundreds of Australian employers who rely on Fair Work Centre for employment law advice, HR documents, and Fair Work Commission representation.
