Flexible Working Arrangements Under Fair Work: Employer’s Guide

Flexible working arrangements are no longer a “nice to have” in Australia - they’re often essential to attracting and keeping great people. With updates to the Fair Work Act 2009 (Cth) strengthening employee rights (effective from 2023), employers now have clearer obligations to consult, consider and genuinely try to agree on workable flexibility.

If you’re leading a team, you need to understand who can request flexible work, how to assess it, when refusal is allowed, and the documentation that keeps you compliant and confident. In this guide, we unpack the rules step-by-step and share practical tips to implement flexibility in a way that protects your business and supports your staff.

By the end, you’ll know exactly what the law expects, what “reasonable business grounds” really means, and how to set up a simple, fair process that works in the real world.

What Counts As a Flexible Working Arrangement?

Under Australian law, a flexible working arrangement is any change to the way an employee works that helps them manage personal circumstances while still doing their job effectively. Common examples include:

• Adjusting start and finish times (e.g. 7:30am–3:30pm instead of 9–5)
• Changing work patterns (part-time, compressed hours, job-share, split shifts)
• Working from home or another location (all or part of the week)
• Altering rosters or days of work
• Transitional arrangements when returning from parental leave

Many businesses offer informal flexibility already. The difference with the Fair Work Act is that certain employees have a legal right to request flexible work - and you must follow a specific process when responding.

Who Can Request Flexible Work (And What Is a “Long‑Term Casual”)?

Under the National Employment Standards (NES), employees who have at least 12 months of continuous service can make a formal request for flexible working arrangements. This also includes long‑term casuals - that is, casual employees who have worked on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment.

Eligible reasons to request flexible work include:

• Being a parent or carer of a school‑aged child or younger
• Being a carer (within the meaning of the Carer Recognition Act)
• Having a disability
• Being aged 55 or older
• Experiencing family or domestic violence, or supporting a household member who is
• Being pregnant

Small business? The same rules apply. Whether you have five employees or fifty, you need a clear, consistent way to handle requests - a simple policy and templates go a long way.

How the Law Changed in 2023: Your Obligations Step‑By‑Step

The Fair Work Act now sets out a stronger, more structured process for handling flexible work requests. Here’s what you must do when you receive a written request from an eligible employee.

1) Discuss the Request and Consider the Consequences

You must discuss the request with the employee. This isn’t a tick‑box chat - it’s a genuine conversation about why they’re asking, what would help, and how it might work operationally.

Crucially, you’re required to consider the consequences for the employee if you refuse. For example, could refusal affect their ability to care for a child, manage a disability, or safely perform their role? This assessment should be part of your decision‑making and documented in your outcome letter.

2) Genuinely Try to Reach Agreement

The law expects you to explore options and alternatives. That could mean proposing different days, a staged return, a trial period, or partial remote work. If the original request won’t work, think about adjustments that might - and be prepared to explain what you considered.

3) Decide and Respond in Writing Within 21 Days

You must give a written response within 21 days that either:

• Approves the request (in full or in part), or
• Refuses the request on reasonable business grounds.

If you refuse, your letter needs to do more than say “no.” It must:

• Set out the specific reasonable business grounds for refusal
• Explain how those grounds apply to this request and your workplace
• Outline any alternative changes you can offer to accommodate the employee’s circumstances
• Confirm you discussed the request and considered the consequences of refusal
• Inform the employee of their right to escalate the matter to the Fair Work Commission (FWC)

4) Be Prepared for FWC Involvement If There’s a Dispute

The FWC now has stronger powers to deal with disputes about flexible work requests. If agreement can’t be reached, the Commission can conciliate and, if needed, arbitrate. In some cases, the FWC can make orders, including requiring an employer to implement (or partially implement) a requested arrangement if reasonable business grounds for refusal aren’t established.

In short: take the process seriously, document your reasoning, and keep an open mind about alternatives.

What Are “Reasonable Business Grounds” for Refusal?

You can only lawfully refuse a flexible work request on reasonable business grounds. These must be real, evidence‑based and specific to your business. Common examples include:

• Excessive cost - the adjustment would be unreasonably expensive to implement
• Capacity and staffing - there’s no capacity to change other employees’ work arrangements to accommodate the request
• Practicality - it’s impractical to recruit or rearrange staff to cover the requested changes
• Service or productivity impact - the change would significantly reduce productivity or negatively affect customer service
• Role requirements - key duties cannot be performed in the requested manner (e.g. on‑site presence is essential for safety or service delivery)

A refusal should never be based on unfamiliarity or personal preference. If you’re relying on cost or impact grounds, be ready to point to facts: rosters, budgets, workflow requirements, or safety risks. It can also help to consider whether employee rostering changes could make an alternative arrangement workable.

Managing Working From Home Requests

Remote and hybrid work remain among the most common flexibility requests. You must assess work from home requests using the same legal process: discuss, consider consequences, explore alternatives, and respond within 21 days.

When considering remote work, think about:

• Role suitability - which tasks can be done remotely without reducing quality or safety?
• Work health and safety (WHS) - ensuring an employee’s home setup is safe, with ergonomics, breaks and risk management covered
• Security and confidentiality - appropriate systems for device use, document handling and data access
• Communication and performance - how you’ll set goals, check‑ins, availability and metrics
• Trial periods and reviews - start small, test what works, and adjust

It’s wise to adopt a clear, practical policy for working from home that outlines eligibility, expectations, equipment responsibilities and how arrangements are reviewed.

Build a Simple Framework: Policies, Templates and Contracts

Having the right documents saves time, keeps decisions consistent and shows you’ve complied with the law. Consider the following core tools.

Flexible Work Policy

A short policy sets expectations for who can ask, how to apply, what managers consider, and how decisions are communicated. It should mirror the NES and the 2023 Fair Work requirements (discuss, consider consequences, and genuinely try to agree), and refer to your process and timelines.

Flexible Work Request Form

A standard form ensures you receive the information you need to assess the request properly (the change sought, start date, duration, reasons, and any proposed alternatives). It also prompts the manager side to record discussion notes, alternatives considered and the final outcome.

Working From Home Policy or Agreement

For remote or hybrid setups, detail WHS requirements, equipment ownership, cost responsibilities, security and IT rules, hours and availability, and performance expectations. Connect this policy with your confidentiality and data protection settings, such as your Privacy Policy.

Employment Contracts That Align With Flexibility

Make sure your Employment Contract is consistent with your flexible work policy and any award or enterprise agreement obligations. Contracts should set out ordinary hours, locations, and any scope for roster or location changes - and avoid clauses that conflict with a flexible arrangement you approve.

Handbooks and Workplace Policies

Bring it all together in a Staff Handbook or policy suite so managers and staff can quickly find the process and expectations for flexible work, remote work, WHS, leave, and conduct. Many employers also implement an IT and information security policy to support secure remote access.

Best‑Practice Process: From Request to Review

Great flexibility doesn’t happen by accident - it’s supported by a simple, repeatable process. Here’s a practical model you can adopt.

Receive and Acknowledge

• Confirm receipt of the written request and schedule a discussion promptly
• Ask for any extra information you need to understand the request fully

Consult and Assess

• Hold a focused discussion about the request, including the reasons and what would help
• Consider the consequences of refusing the request for the employee’s circumstances
• Assess operational impacts: coverage, cost, clients, safety and technology
• Look for alternatives if the initial request won’t work (different days, trial periods, partial changes)

Decide and Confirm in Writing

• Respond within 21 days with a clear decision
• If refusing, set out the specific reasonable business grounds and how they apply to the role and workplace
• Offer alternatives where possible and note the consultation you undertook
• Include information about the employee’s ability to escalate to the FWC

Implement, Trial and Review

• For approved requests, document the arrangement (scope, duration, review date) and update relevant records
• Set measurable expectations and include a review point (e.g. after 6–8 weeks)
• Revisit rosters, workflows and communication norms to support the change - your approach to employee rostering often makes or breaks day‑to‑day success

Awards, Rosters and Other Employment Law Considerations

Beyond the NES process, keep an eye on your broader employment law obligations. These frequently intersect with flexible work.

• Modern Awards and enterprise agreements: Many instruments contain rules about changing hours, rosters or locations. Make sure your flexibility decisions also comply with any consultation or notice requirements under your relevant Modern Awards or agreements.
• Discrimination and equal opportunity: Be consistent and objective. Apply the same process to all eligible employees and ensure your reasoning relates to legitimate operational needs.
• WHS obligations: You’re responsible for health and safety, including in home‑based work settings. Conduct risk assessments, clarify responsibilities and ensure safe systems of work.
• Confidentiality and data protection: Remote work often means new systems and processes. Align your flexibility framework with your Privacy Policy and IT security settings to protect personal and confidential information.
• Communication and performance: Flexibility works best when expectations are clear. Use policies, one‑on‑ones and simple metrics to keep everyone on track.

Frequently Asked Questions

Do Employees Need to Use a Particular Form to Apply?

No specific form is required by law, but the request must be in writing and set out the change sought and the reasons. A simple internal template streamlines the process for everyone.

Can We Refuse a Request If We’re a Small Business?

Yes - small businesses can refuse on reasonable business grounds, just like larger employers. The key is to consult, consider the consequences of refusal, genuinely try to agree, and document your decision with specific reasons.

How Do Flexible Arrangements Interact With Employment Contracts?

If you approve a change that affects hours, location or duties, record it appropriately - either as a side letter, policy acknowledgment or contract variation. Make sure your underlying Employment Contract allows for this kind of variation where appropriate and remains consistent with any award obligations.

What If an Employee’s Circumstances Change?

Build in review points. Flexibility can evolve - for example, needs may reduce over time after a return from parental leave. Regular reviews help you adapt while keeping service levels and safety front of mind.

Can We Run a Trial Before Committing Long‑Term?

Absolutely. Trial periods are often sensible, particularly for new or complex arrangements. Confirm the trial scope and review date in writing, then adjust based on what you learn.

Key Takeaways

• Eligible employees under the NES can request flexible work; from 2023, you must discuss the request, consider the consequences of refusal and genuinely try to reach agreement.
• Respond in writing within 21 days and, if refusing, set out specific reasonable business grounds, how they apply, and any alternatives you can offer.
• The Fair Work Commission can now resolve disputes and, in some cases, order changes if reasonable business grounds aren’t established.
• Don’t treat working from home differently - assess it using the same legal process and support it with a practical policy and WHS, security and performance settings.
• Align your documents: a clear flexible work policy, a working from home framework, and consistent Employment Contract terms and Staff Handbook will make compliance easier.
• Always check award and agreement obligations, keep decisions consistent and objective, and connect flexibility with rostering, WHS and your Privacy Policy.

If you’d like a consultation about managing flexible working arrangements under Fair Work in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.