Requests for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (“FW Act”) have recently been in the spotlight.
Recent decisions of the Fair Work Commission (“FWC”) set out the importance of managing requests for flexible working arrangements in a manner consistent with the FW Act.
Employee Eligibility and Request for Flexible Working Arrangements
The eligibility criteria, relevant circumstances, and examples of changes in work arrangements upon which requests for flexible working arrangements can be made under section 65 of the Fair Work Act 2009 (Cth) are summarised below:
| Eligibility | Relevant circumstances set out in sections 65(1A) and section 65(1B) | Examples of changes in work arrangements |
| – Full-time and part-time employees, who have completed 12 months continuous service – A casual employee must have been a regular casual employee for at least 12 months and have a reasonable expectation of continuing employment on a regular and systematic basis. | – Employee is pregnant – Employee is the parent, or has responsibility for the care, of a child who is of school age or younger – Employee is a carer (within the meaning of the Carer Recognition Act 2010) – Employee has a disability – Employee is 55 or older – Employee is experiencing family and domestic violence – Employee provides care or support to a member of the employee’s immediate family, or a member of the employee‘s household, who requires care or support because the member is experiencing family and domestic violence. | – Hours of work – Patterns of work – Location of work |
| – Employee is a parent, or has responsibility for the care, of a child and is returning to work after taking leave in relation to the birth or adoption of the child | – Part-time |
An employee must submit the request for a flexible working arrangement in writing, specifying the details of the change sought and the reasons for the change. Any request for changed work arrangements must be made on the basis of the relevant circumstances.
Responding To a Request For Flexible Working Arrangement
An employer must respond within 21 days of receiving it.
Before providing a written response, an employer must discuss the request with the employee and genuinely try to reach an agreement on a change in working arrangements that accommodates the employee’s circumstances.
In responding to a written request for flexible working arrangements, an employer must specify:
- whether the request is granted; or
- if an alternative agreement has been reached, the agreed-upon changes; or
- refuse the request on reasonable business grounds. If an employer refuses the request on reasonable business grounds, they must outline any alternative arrangements they are willing to offer that could accommodate the employee’s circumstances to some extent. If no alternative arrangements are possible, the written response must address this.
If refusing a request, it is essential that an employer has evidence-based reasons to support the refusal. It is also essential for an employer to consider the consequences of the refusal on the employee.
Dispute Resolution
If an employer fails to respond within 21 days, or the employer has refused an employee’s request, the employer and employee must attempt to resolve the dispute at the workplace level, by discussions between the parties. If discussions at the workplace level do not resolve the dispute, either party may refer the dispute to FWC.
Over the last financial year, the FWC received almost 300 disputes over flexible work arrangements. However, only a small number of disputes were resolved through arbitration. Recent decisions of the FWC had the following outcomes:
- Hutchinson v Cleanco Queensland Ltd [2025] FWC 2887: The FWC found that the flexible working arrangement was not validly made and that the employer had reasonable business grounds for refusing the request. Whilst the FWC determined that the employee had school-aged children, and that the employee’s son had special needs, the FWC did not consider that the request was made because of circumstances set out in 65(1)(A) of the FW Act. The FWC found that the operative reason the employee made the request was to spend more time with his family, which was not a relevant circumstance.
- Zammit v Sydney Water Corporation [2025] FWC 3079: The FWC did not have jurisdiction to deal with the employee’s application in circumstances where the request was made before the employee was 55 years or older.
- Chandler v Westpac Banking Corporation [2025] FWC 3115: The employee was a part-time employee who requested a flexible working arrangement to work remotely from her home, accommodating care for and school pick-ups and drop-offs for her two six-year-old children. The employer refused the request, and the employee’s proposed alternative arrangement was rejected. The FWC found that the employer failed to comply with statutory requirements under the FW Act, including to respond within 21 days and genuinely discussing the request or trying to reach an agreement before the refusal. The FWC also held that the employer’s refusal was not on reasonable business grounds, as the evidence showed that the role could be performed remotely and had been for years. The FWC ordered the employer to grant the employee’s request for flexible working arrangements.
Our Practical Guidance Tips
It is important to recognise that:
- each request for flexible working arrangements will turn on specific circumstances, and should be considered by the employer as such; and
- not all requests for flexibility will necessarily qualify as requests under sect 65 of the FW Act. It is essential for employers to understand the distinction so that formal and informal requests for flexibility are each handled properly.
We recommend:
- updating policies and procedures to cover the steps for lawfully dealing with written flexible working arrangements requests made under s 65 of the FW Act; and
- training and educating relevant decision-makers on how to lawfully deal with requests under the FW Act, to minimise the risk of legal disputes.
If you require advice on how to manage requests for flexible working arrangements, please contact the team at WilliamsonBarwick.
