Flexible Work Requests in Australia: Eligibility, the 21-Day Response and FWC Disputes

Under section 65 of the Fair Work Act 2009 (Cth), an eligible employee can formally request a change to their hours, pattern or location of work, and since 6 June 2023 can take an employer's refusal or non-response to the Fair Work Commission for resolution.

The Right to Request Flexible Working Arrangements

Section 65(1) of the Fair Work Act lets an employee request a change in working arrangements if a circumstance listed in section 65(1A) applies to them and they would like to change their arrangements because of it. The note to section 65(1) gives examples of the kind of change covered: changes in hours of work, changes in patterns of work, and changes in location of work.

Who Is Eligible

Section 65(1A) sets out the circumstances that can support a request: the employee is pregnant; is the parent, or has responsibility for the care, of a child who is of school age or younger; is a carer within the meaning of the Carer Recognition Act 2010; has a disability; is 55 years of age or older; is experiencing family and domestic violence; or provides care or support to a member of their immediate family or household who is experiencing family and domestic violence. Section 65(1B) separately confirms, without limiting the general right, that a parent or carer returning from birth or adoption-related leave can request part-time work to help care for the child.

This eligibility list, together with the Fair Work Commission's dispute-resolution power described below, was introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and commenced on 6 June 2023.

A non-casual employee needs at least 12 months of continuous service with the employer immediately before making the request. A casual employee needs to be, immediately before the request, a regular casual employee engaged on that basis for a sequence of periods of employment over at least 12 months, with a reasonable expectation of continuing employment on a regular and systematic basis; time spent as a regular casual before converting to permanent employment under the Act's casual conversion provisions, covered on recordinglaw.com's casual employee rights guide, counts toward that 12 months.

Making the Request

Section 65(3) requires the request to be in writing and to set out the details of the change sought and the reasons for it.

The Employer's Response: 21 Days

Section 65A(1) requires the employer to give the employee a written response within 21 days. That response must either grant the request, set out a different change the employer and employee agreed to after discussion, or refuse the request.

An employer can refuse only if every one of four conditions in section 65A(3) is met: the employer discussed the request with the employee; the employer genuinely tried to reach agreement about changes that would accommodate the employee's circumstance; no agreement was reached; and, having had regard to the consequences of the refusal for the employee, the refusal is on reasonable business grounds. Section 65A(5) gives a non-exhaustive list of what can count as reasonable business grounds: the new arrangements would be too costly; there is no capacity to change other employees' working arrangements to accommodate it; it would be impractical to change other employees' arrangements or recruit new employees to accommodate it; it would likely result in a significant loss in efficiency or productivity; or it would likely have a significant negative impact on customer service. The employer's size and the nature of its business are relevant to whether particular grounds are reasonable, so a small employer may genuinely have no capacity to redistribute work that a larger employer could absorb.

A written refusal must, under section 65A(6), give the reasons for the refusal, including the employer's particular business grounds and an explanation of how those grounds apply to this specific request; either set out any other changes short of the one requested that the employer would be willing to make, or state that there are none; and set out the effect of the dispute-resolution provisions described below, so the refusal notice itself has to tell the employee about their next steps. An employer must not take adverse action against an employee for making a flexible work request, under the Act's general protections regime, covered on recordinglaw.com's general protections and adverse action guide.

Disputing a Refusal or No Response

Since 6 June 2023, an employee can take a dispute to the Fair Work Commission where the employer has refused the request, or 21 days have passed since the request was made without a written response. The parties must first try to resolve the dispute at the workplace level through discussion; if that fails, either party can refer it to the Commission. The Commission generally deals with the dispute by conciliation, mediation, or a recommendation or opinion, rather than arbitration, unless exceptional circumstances exist, and can only move to arbitration under section 65C after that.

If it arbitrates, the Commission can order that an employer who gave no written response be taken to have refused the request; that an employer's stated grounds for refusal be taken to be, or not to be, reasonable business grounds; that an employer take further steps where its response was inadequate; or, if satisfied there is no reasonable prospect of resolving the dispute otherwise, that the employer grant the request or make specified alternative changes. Fairness between the employer and employee is a factor the Commission must take into account in making any order. Contravening an order under this process is a civil remedy provision, enforceable with a civil penalty rather than as a criminal offence.

Not the Same as the Right to Disconnect

The right to request flexible work and the right to disconnect, covered on recordinglaw.com's right to disconnect guide, both come out of the same broader sequence of federal workplace relations reforms, but they are not the same right and did not commence on the same date. The flexible work provisions described above were inserted by the Secure Jobs, Better Pay Act 2022 and commenced 6 June 2023; the right to disconnect came from a later, separate amending Act in the same reform sequence. The flexible work right is a right to request a change to hours, pattern or location of work, with a structured response and dispute process; the right to disconnect is a right not to engage with work contact outside working hours, resolved through its own separate Fair Work Commission dispute process.

Where This Fits With Other Australia Employment Law Guides

This entitlement sits within the National Employment Standards alongside the other minimum entitlements covered on recordinglaw.com's Australia employment law hub, including notice of termination and redundancy pay.

This article provides general legal information about the Fair Work Act 2009 (Cth), current as at 18 August 2026. It is not legal advice and does not account for your individual circumstances. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory.