Striking the right balance between business needs, legal obligations and employee welfare is key when handling a flexible work request. Use these tips to ensure your approach is fair and compliant.

How an employer responds to a flexible work request can have lasting legal and cultural consequences for an organisation.

Following legislative changes implemented in June 2023, employers who refuse a flexible work request face the possibility of a dispute being taken to the Fair Work Commission (FWC). 

Given this added legal risk, it’s in every employer’s best interest to engage with flexibility requests thoughtfully and work towards an internal resolution before the matter escalates.

The business case for handling flexible work requests with care also goes far deeper than legal compliance, says Georgie Chapman, Partner at HR Legal.

“Employers are having to grapple more and more with the fact that there’s now this underlying expectation in the workforce that there will be a degree of flexibility, and employees are increasingly making choices as to where they’re going to work based on whether that employer will afford them flexibility – irrespective of whether they have that eligibility under the Fair Work Act,” she says.

Since the updated rules around flexible work requests were implemented, the FWC has dealt with a number of disputes over the legislation, which have shed light on what the Commission deems best practice for handling these requests.

Below, Chapman provides insight on some of the key legal considerations raised by these cases, and how HR can ensure their flexible work policy is both compliant and considerate.

What this article covers: 

Legal obligations for handling flexible work requests under the Fair Work Act

Assessing the suitability of a proposed flexible working arrangement

Reasonable business grounds to refuse a flexible work request

Consultation requirements and best practice during decision-making.

1. Is there a legal obligation to consider and respond to the request?

No matter who submits a flexible work request, it’s always best practice to consider and respond thoughtfully to ensure the employee feels heard and understands the decision that’s made.

With that said, HR and managers should keep in mind that employers have a legal obligation to address flexibility requests from certain cohorts of employees. 

These obligations were reinforced by legislative changes coming from the Fair Work Legislation Amendment (Secure Jobs, Better Pay Bill) Act 2022, which gave certain employees the right to bring a dispute over a flexible work request denial to the FWC.

Per the rules, employers must consider and respond ‘reasonably’ to flexible work requests from employees who are: 

• Over 55
• Living with a disability
• Pregnant
• Caring for infants or school-aged children
• Carers (within the meaning of the Carer Recognition Act 2010 (Ch)), or
• Experiencing family and domestic violence, or caring for someone who is.

“The changes were effectively reflecting what was in [most] modern awards into the National Employment Standards for all employees, and they really reinforce the impetus on having a discussion between the employer and the employee and seeking to reach an agreement,” says Chapman.

These rules were tested in a recent FWC case where the Commission overruled an employer’s refusal to accommodate a parent’s request to work an extra day per fortnight from home. 

One of the employer’s justifications for refusing the request was that the employee’s contract stated that the company’s North Sydney office was his “usual place of work”, meaning he was not entitled to remote working arrangements. 

“What’s in the contract is a relevant consideration… But it isn’t going to be determinative,” says Chapman.

“[In this case], the FWC talked about the purpose of the new flexible work provisions, and said the purpose of them is to look at an individual’s circumstances and changes they’ll need to the ordinary arrangements. So, even though it was generally an in-office role, this person is saying they have parental responsibilities, so we need to look at the request through that lens.”

“An employer has 21 days to respond to a flexible work request. But my suggestion is that employers have those meetings as soon as possible, because there might need to be further discussions.” – Georgie Chapman, Partner at HR Legal

2. Can the role be effectively performed under the proposed arrangement?

Per the Secure Jobs bill, employers who refuse flexible work requests from the above cohorts must provide ‘reasonable business grounds’ for doing so.

Naturally, flexible work requests are easier for some employers to accommodate than others, and employers managing frontline workers are far more likely to have reasonable grounds to refuse a request.

However, in other roles and sectors, what constitutes a reasonable refusal is often not clear-cut.

In the case mentioned above, the employer also attempted to justify its refusal of the parent’s flexible work request by citing concerns about his performance when working remotely. In his response, the employee argued that these concerns had never been brought to his attention before. 

“Where the employer fell down in this case is that they asserted all sorts of concerns and customer complaints, but there was nothing in the evidence that persuaded the FWC that there were issues with performance that could be linked to working from home.”

However, if there is demonstrable evidence that an employee is not meeting performance expectations while working remotely, it may well be considered a relevant factor by the FWC, she adds, since performance concerns tend to warrant closer supervision.

Another factor that might come into play when determining if the role can be effectively performed under the proposed arrangement is an employee’s level of seniority.

“If someone’s junior and they’re just developing in a particular role, having access to in-person supervision, mentoring and the like can be beneficial,” she says. “That’s not to say that across the board, junior employees should be in office 100 per cent of the time, but it is absolutely a relevant consideration.

“Equally, it’s a relevant consideration for someone in a leadership position needing to be available to provide that mentoring, supervision and support in person.”

3. Would approving this request create an unreasonable burden on the business?

Demonstrating reasonable business grounds to refuse a flexible work request often involves laying out the financial and/or operational impact of the proposed arrangement on the business.

This obligation was considered in one of the first challenges to the new laws around flexible working in November 2023, when the FWC ruled in favour of an employer’s right to refuse a remote work request.

The employee who brought the dispute to the FWC argued that his request to work from home 100 per cent of the time should have been approved due to his health issues and parenting responsibilities. 

However, the employer was able to prove that a remote working arrangement for this particular employee would create an unreasonable burden on the business.

“[This employee] was part of a team that was servicing a government client which had really stringent contractual requirements,” says Chapman. “[For example], 99 per cent of calls had to be answered within three minutes. Financial penalties would be incurred by the employer if they didn’t meet those requirements.”

The employer provided documentation showing that the employee’s daily productivity had dipped to 50 per cent – well below the company target of 85 per cent – and argued that having in-office support would help him meet his performance targets.

Framing the argument in this way helped the employer’s case significantly, says Chapman. 

“Rather than saying, ‘It’s because you’re working from home that you’re not performing,’ it’s [preferable] to say, ‘We’d like you back in the office to receive support so we can lift your performance, and then we’re willing to consider what is viable on an ongoing basis.’ 

“If the person started working from home, and you saw that dip again, you’d probably be able to reasonably say, ‘We don’t think that working from home is working in this scenario.’ But making assumptions without tangible evidence of that is where employers can [slip up].”

“As with anything in workplace relations, there’s the legal side, but there’s also the fact that we’re dealing with human beings.” – Georgie Chapman, Partner at HR Legal

4. Has the employee been properly consulted during decision-making?

When responding to a flexible work request, best practice is to consult with the employee in question and, if their request cannot be accommodated, try to find a satisfactory middle ground, says Chapman.

“An employer has 21 days to respond to a flexible work request. But my suggestion is that employers have those meetings as soon as possible, because there might need to be further discussions,” she says.

One of the key reasons why the FWC backed the employer’s refusal of a flexible work request in the case above was that the employer demonstrated that it had tried to negotiate a compromise with the employee.

Before denying the request, the company offered the employee a chance to initiate a gradual return to work over a period where he would be allowed to work remotely 80 per cent of the time. 

They also told him he could allocate his office days to weeks where he would not have custody of his child, and could alter his hours to accommodate school pickups/drop offs. 

A thorough consultation process like this will minimise the risk that the matter proceeds to court, says Chapman, and will also help employers understand the employee’s unique needs and challenges.

“Since those new provisions went in, we’re really encouraging clients to take a proactive approach and seek to work through it with employees,” she says.

“Because, as with anything in workplace relations, there’s the legal side, but there’s also the fact that we’re dealing with human beings. We want to try and understand what the individual is seeking and arrive at an arrangement that’s going to both meet their requirements and the operational requirements of the business.”

All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.

Test and apply your employment law expertise with AHRI’s Advanced HR Law short course.