Managing Flexible Working Requests Under the Fair Work Act

Changing workforce expectations, economic pressures, and the evolving nature of work continue to drive a significant volume of requests from employees to change their working arrangements. Employers across all industries face the challenge of managing those requests quickly, lawfully, and in a way that preserves operational efficiency.

For employers, managing that volume of requests requires an understanding of the framework under the Fair Work Act 2009 (Cth) (FW Act).

The Fair Work Act 2009

Two mechanisms under the FW Act bear directly on flexible working: the statutory right to request flexible working arrangements under s 65, and Individual Flexibility Arrangements (IFAs) made under the flexibility term of a modern award or enterprise agreement.

A s 65 request is a statutory entitlement.

• It is available to eligible employees (pregnant women, parents etc.) provided they have completed at least 12 months' continuous service, or meet the casual eligibility criteria.

• The employer must respond in writing within 21 days. Refusal is permissible only on reasonable business grounds and only where the employer has complied with each element of the process in s 65A. There is no better-off-overall test; the request is either granted or validly refused.

An IFA is a bilateral arrangement that varies the operation of a modern award or enterprise agreement in its application to a single employee.

• Every modern award and enterprise agreement is required to contain a flexibility term. An IFA under the model flexibility term can vary arrangements for when work is performed, overtime rates, etc.

• The employee must be better off overall than under the unvaried instrument, assessed at the time the IFA is agreed (s 144(4)(c)).

Both mechanisms are directly relevant to any employer managing an increase in flexible working requests.

Typical Flexible Working Requests

Employee requests for flexible work arrangements typically fall into three categories: changed hours, changed location and a change in shift patterns.

Each request can be accommodated through a s 65 response, an IFA, or a consultative variation to rostering. In each case, the outcome depends on whether the employer discharges its procedural obligations.

The Procedural Requirements For Refusal

Recent Commission decisions confirm that refusing a s 65 request is not a matter of managerial discretion. The Act prescribes the process and the Commission enforces it strictly.

For example, in 2025 in Chandler v Westpac Banking Corporation [2025] FWC 3115, the Commission ordered Westpac to approve a part-time employee's request to work remotely to accommodate caring responsibilities. Westpac's stated concerns, regarding face-to-face engagement and productivity concerns, were not substantiated.

The Full Bench went further in Naden v Catholic Schools Broken Bay Limited [2025] FWCFB 82. A teacher returning from parental leave sought to perform her executive Religious Education Coordinator role on a part-time basis; the school refused on policy and operational grounds. The Full Bench held that each sub-section of s 65A(3) must be satisfied before an employer can refuse. The school had not turned its mind to the consequences of refusal for the employee, reduced income, career impact and the personal significance of the role, nor addressed those consequences in its written response. That failure alone invalidated the refusal, irrespective of whether the underlying business grounds were otherwise reasonable.

The practical effect is that every refusal must evidence:

(a) genuine discussion with the employee;

(b) a genuine attempt to reach agreement;

(c) express consideration of the consequences of refusal for the employee; and

(d) a documented business rationale.

Reasonable Business Grounds Require Evidence

The expression "reasonable business grounds" is capable of broad interpretation. In practice, the Commission has construed it narrowly where the employer has failed to substantiate its position with contemporaneous evidence.

In Aoyama v FLSA Holdings Pty Ltd [2025] FWC 524, the Commission rejected an employer's reasons of customer responsiveness, perceived negative customer impressions, and concern that granting the request would set a precedent for other employees. The Commission expressly rejected the precedent argument, holding that the purpose of flexible working arrangements is to accommodate the circumstances of individual employees; a request cannot be refused merely because it might alert other employees to their rights. The Commission also confirmed that the terms of an employment contract, including a nominated office location, are not a bar to a flexible working arrangement, because accommodating an individual employee's circumstances may require a departure from contractual terms.

A comparable result followed in the Louise v Metcash Trading Limited decision, where Metcash was ordered to grant an employee an exemption from returning to office, again turning on a lack of evidence that the employee's remote work had adversely affected service delivery or productivity.

Therefore, employers that anticipate refusing flexible working requests which genuinely cannot be accommodated should construct the evidentiary record in advance, including a record of alternatives considered and the reasons each was rejected, and position descriptions that accurately identify where in-person attendance is required and why.

Individual Flexibility Arrangements

Where the s 65 framework addresses high-level working arrangements, the IFA determines which award or enterprise agreement entitlements are varied for an individual employee.

Under the model flexibility term in a modern award (s 144(4)), an IFA may vary:

• arrangements for when work is performed (start and finish times, rosters, breaks and notice periods);

• overtime rates;

• penalty rates;

• allowances; and

• annual leave loading.

IFAs also have strict procedural requirements. Section 145 addresses the consequences of non-compliance, but could be treated with some flexibility where needed.

Under the model flexibility term, an IFA may be terminated on 13 weeks’ written notice (which may be shorter in some awards) or by mutual written agreement. This means that if the underlying circumstances change, the arrangement can be unwound without the employer being committed to a long-term variation.

Changes To Shift Patterns And The Duty To Consult

A change to shift patterns imposed across a workforce engages a different set of obligations. Section 145A of the FW Act requires every modern award to contain a term requiring consultation with employees about changes to their regular roster or ordinary hours of work. Most enterprise agreements contain an equivalent consultation clause.

Any employer-initiated change that affects start and finish times, penalty rate windows, or weekend patterns will almost invariably engage this duty. A failure to consult exposes the employer to dispute applications before the Commission and, where the breach relates to the consultation clause of an enterprise agreement, to civil penalty proceedings under s 539.

Where the proposed change is significant, the following steps should be combined:

• written notification of the proposed change to all affected employees;

• a defined consultation period with employee and union representatives;

• documented evidence of the operational rationale (demand patterns, capacity gaps, cost pressures and absenteeism risk);

• IFAs to record agreed individual variations to overtime or penalty rate entitlements; and

• s 65 responses for employees whose personal circumstances require further individual accommodation.

Concluding remarks for employers.

For commercially minded employers, flexible working requests and IFAs can be used as a tool to work with volatility without losing staff, productivity or operating leverage. Employers that run the process properly can retain talent, contain legal exposure, and avoid the Commission proceedings that now reliably follow a mishandled refusal.

The content in this Article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. It should not be relied upon as such. You should seek legal or other professional advice before acting or relying on any of the content.

The solicitors at BlackBay Lawyers can provide specialised and detailed advice for athletes and their advisors. If you require advice, please feel free to contact BlackBay Lawyers on (02) 8005 3077 or via www.blackbaylawyers.com.au for a confidential discussion with one of our solicitors

ABOUT THE AUTHOR

Sreya Vadlamani  is currently completing her Juris Doctor and brings a strong analytical and commercial background to the firm. Prior to joining BlackBay, she worked in the UK as an Investment Consultant at Aon, advising institutional investors on large portfolios across a range of asset classes.