Section 65 of the Fair Work Act 2009 (Cth) (the Act) gives certain employees the right to request flexible working arrangements. This right doesn’t mean that every request must be approved, but it does mean that employers must follow a particular process set out in the legislation before saying no to an employee’s request.
Flexible Working Arrangements & Requests
It’s a formal written request from an eligible employee asking to change their working arrangements because of specific personal circumstances.
Generally, requests include:
- Changing hours of work (eg reducing hours to part-time instead of full-time; earlier or later start/finish times)
- Changing patterns of work (eg split shifts or job sharing)
- Changing work location (eg working from home some or all of the time)
However, a flexible work request isn’t limited to the above items, and can include any requests that seek flexibility in the current agreed working arrangements.
Who can make a request?
In accordance with section 65 of the Act, an employee must have at least 12 months’ continuous service, or be a regular and systematic casual with a reasonable expectation of continuing work.
An employee can make a request if they:
- are pregnant
- are a parent or have responsibility for a child of school age or younger
- are a carer under the Carer Recognition Act 2010 (Cth)
- have a disability
- are 55 years or older
- are experiencing family or domestic violence, or supporting a family member who is.
Employer Obligations
When receiving a section 65 request, employers must:
- Consider the request genuinely and discuss it with the employee
- Respond in writing within 21 days
- Approve the request unless there are reasonable business grounds for refusing it.
Reasonable Business Grounds
An employer can refuse a request if accommodating it would, for example:
- Be too costly,
- Have a significant impact on productivity or customer service
- Require changes to other employees’ work arrangements that aren’t practical
- Mean there’s no suitable work available under the proposed arrangement.
Since 6 June 2023, employers also have additional procedural obligations, including a requirement to:
- try to reach an agreement with the employee before refusing a request; and
- provide detailed written reasons for any refusal.
Notably, employees have the right to apply to the Fair Work Commission for review if they believe a request has been unreasonably refused or ignored, so it’s important that employers understand the requirements set out in section 65 of the Act and follow them when dealing with these requests.
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