Flexible Work Requests: Risks, Rules and Realities in the Age of Entitlement

Few workplace issues have shifted as rapidly, or become as legally significant, as flexible work arrangements. Once a discretionary or cultural issue, flexible work is now governed by enforceable legal rights, strict timeframes, and an increasingly active Fair Work Commission.

This article distils the key insights from our recent webinar and answers the questions employers are asking most often about flexible work requests under the Fair Work Act – what they are, who can make them, how they must be handled, and where the real risks sit.

Flexible Work Is No Longer “New”. It’s the New Normal.

Flexible work in Australia is no longer experimental or a luxury. For large parts of the Australian workforce, flexible arrangements are simply how work is done.

The COVID-19 pandemic accelerated the adoption of remote work technologies across nearly every industry. What followed was not a temporary adjustment, but a lasting structural shift in how work is organised and how employees define reasonable working conditions.

For many employees, particularly younger workers, work is no longer defined as:

• 9am to 6pm
• Five days a week
• In a single physical location.

Instead, flexibility is increasingly regarded as an expected feature of employment, not a perk.
Importantly for employers, this shift is not going backwards.

What Counts as a Flexible Work Arrangement?

While working from home tends to dominate headlines, flexible work is much broader than working from home.

Other forms of flexible work include:

• Part-time hours
• Changed start and finish times
• Compressed work weeks
• Job sharing
• Working from a different location
• Adjusted rosters or patterns of work.

Some requests are familiar and well established (such as part-time work following parental leave). Others continue to evolve, particularly as employees become more creative, often with the assistance of AI tools, in articulating what flexibility could look like.

The Game Changer: Flexible Work Requests Can Now Be Challenged

The most significant shift for employers occurred in June 2023, when changes to the Fair Work Act gave employees the ability to challenge refusals of flexible work requests before the Fair Work Commission.

Before this change, flexible work provisions in the Fair Work Act were often described as a “toothless tiger”. That is no longer accurate.

Today:

• Employers have clear obligations when receiving a request
• Employees have a mechanism to litigate refusals
• The Commission can scrutinise business assumptions about how work must be performed.

This has transformed flexible work into a serious employment law risk area.

Not Every Request Is a “Section 65 Request”

While anyone can ask for flexibility, not every request triggers the formal legal framework.
A request made under section 65 of the Fair Work Act is different. When an employee references section 65 or frames the request as a statutory flexible work request, specific legal obligations apply.

This is the moment employers need to pause, recognise the risk, and ensure the request is handled correctly.

Who Can Make a Formal Flexible Work Request?

To make a valid request under section 65, an employee must meet two key requirements:

1. Minimum Service

• At least 12 months’ continuous service (with modified rules applying to eligible casuals)

• New starters are not eligible under section 65, but this does not mean employers can safely ignore or dismiss their requests.

2. Eligibility Category

The request must relate to the employee’s circumstances as one of the following:

• Pregnancy
• Parental responsibilities (for school-aged children or younger)
• Caring responsibilities
• Disability
• Being 55 or older
• Experiencing family or domestic violence or supporting someone who is.

These categories capture a very large proportion of the workforce, often far more than employers realise.

The “Because Of” Requirement: Where Most Requests Succeed or Fail

Eligibility alone is not enough. A valid section 65 request must be because of the relevant circumstance. This causal link or ‘nexus’ is critical and frequently misunderstood.

What does this mean in practice?

The requested arrangement must directly relate to the circumstance relied upon. General preferences, such as saving money, improving lifestyle, or general work-life balance, are not sufficient on their own.

Recent Fair Work Commission decisions demonstrate that:

• The Commission will closely analyse how the request is framed
• Mismatches between the circumstance and the arrangement can be fatal to the success of the request
• Outcomes are highly fact-specific.

For employers, this means requests must be assessed carefully, not simply accepted at face value.

Timeframes Matter: The 21 Day Clock

Once a valid section 65 request is received, the employer has 21 days to respond. This clock:

• Starts immediately upon receipt of a written request
• Applies regardless of workload or operational pressure.

Failing to respond within 21 days creates a statutory breach, even if the request might otherwise have been lawful to refuse. Early engagement and prompt action are critical.

Best Practice: Dialogue Before Decision

Although the legislation can look binary, approve or refuse in practice, the safest approach is rarely an immediate “yes” or “no”.

Best practice involves:

• Starting a dialogue early
• Seeking clarification about the request and its underlying reasons
• Exploring alternatives or modifications
• Avoiding rushed or defensive refusals.

Many disputes arise not because flexibility is impossible, but because communication breaks down too early.

When an Employee Is Not Eligible, Is It Safe to Say No?

Eligibility under section 65 is only one part of the legal picture. Even where an employee cannot make a formal request:

• Refusals may still create discrimination risks
• Disability related requests may trigger obligations under other legislation
• Inconsistent treatment between employees can create workplace conflict and legal exposure.

A principled, consistent approach, rather than a purely technical one, will significantly reduce risk.

What Employers Must Consider When Assessing a Request

When responding to a request, employers should carefully turn their minds to:

• The employee’s role and responsibilities
• Whether duties must be performed at certain times or locations
• Whether technology enables alternative arrangements
• The operational impact of the request
• The consequences for the employee if the request is refused.

Importantly, employers are unlikely to be able to rely on assumptions about how work “has always been done”. The Fair Work Commission is now empowered to test those assumptions.

Three Possible Outcomes

When a section 65 request is made, there are only three lawful pathways:

1. Approve the request
2. Agree on alternative arrangements
3. Refuse the request on reasonable business grounds, following the required process.

In practice, many successful outcomes sit between outright approval and refusal.

Key Takeaways for Employers

Flexible work is no longer informal, discretionary, or consequence-free. It is:

• A statutory right for many employees
• A growing source of litigation risk
• An area where process matters as much as outcome.

Employers who approach flexible work requests early, thoughtfully and consistently are far better placed to:

• Reduce legal risk
• Maintain team cohesion
• Retain key talent.

ABLA has developed a Flexible Work Arrangement Toolkit that can provide clarity and consistency for your organisation. If you would like tailored advice on managing flexible work requests, updating policies, or responding to a current request, ABLA’s employment and workplace relations team is available to assist.