Legal Insights

Responding to requests for flexible working arrangements: what employers need to do

Ross Jackson

• 05 May 2025 • 3 min read

Under the National Employment Standards, employees in certain specified circumstances can ask their employer for a change in their working arrangements, provided the change relates to their particular circumstances covered by the Fair Work Act 2009 (Act). These include:

being pregnant;
being a carer;
having a disability;
being 55 or older;
having responsibility for a school-age child;
experiencing family violence.

There are strict obligations on employers to consider and respond to a request for a change in working arrangements.

Submitting and responding to a request

It is important to note that the employee must submit the request in writing, and the change must relate to the circumstances that bring the employee within the scope of the section.

However, whilst the employee must give reasons for seeking the change, according to s 65A of the Act the employer can only refuse the request on reasonable business grounds after:

Discussing the request with the employee and;
Genuinely trying to reach an agreement to accommodate the circumstances that the employee relies upon.

The employer must respond in writing within 21 days of the written request being received.

Reasonable business grounds for refusing a request

Circumstances that may constitute reasonable business grounds for refusing a request are set out in the Act, but include matters such as:

cost;
capacity;
practicality; and
the impact on productivity or other workers.

The Fair Work Commission has recently considered the nature and extent of the employer's obligations in complying with the requirements of the Act if refusing a request.

In Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82, a Full Bench of the Commission upheld an appeal by an employee on the basis that the employer did not provide sufficient evidence that they had firstly considered the consequences of the refusal on the employee, and also discussed them whilst seeking to reach an agreement. Moreover, the employer took 82, rather than 21, days to respond.

The Commission stated:

"The requirement to consider the consequences of the refusal for an employee is placed on the employer… In our view, the evidence establishes the discussions which were held were about alternatives offered by the employer based on its business needs and did not include any consideration of the consequences of refusing the agreement on the teacher."

The Fair Work Commission

Finding that the Commission at first instance had not appreciated the significance of these failures, the appeal was upheld.

What are the practical lessons from this decision for employers?

First, employers need to scrupulously comply with the requirements of s 65A and:

Have a checklist for what must be discussed whilst genuinely trying to reach an agreement with the employee;
Make careful notes of having discussed what changes are sought, why they are sought, the attempts to reach agreement on accommodating the employee's circumstances; if no agreement is reached, the employer’s careful and genuine consideration of the consequences of the refusal for the employee; and what reasonable business grounds are relied upon if the request is to be refused and no agreement on alternative arrangements is reached;
Capture all of the above and set it out methodically in the written response which must be provided within 21 days of receiving the request.

Secondly, employers should bear in mind that since the middle of 2023, disputes about whether the request should be granted or refused on reasonable business grounds can now go to the Commission, where they will be ultimately determined by the Commission exercising its arbitral powers. Some employees will have this pathway already through their enterprise agreement.

Lastly, employers should not underestimate the significance of not only having sound, logical and evidence-based "reasonable business grounds" (which must be something much more than simply inconvenience to the employer) if a request is to be refused, but also complying with the procedural requirements that the Act sets out with regards to what must be discussed and documented within strict timeframes.

Does your organisation have the correct processes in place to respond to requests for flexible working arrangements?

Get in touch with our team for any guidance needed.

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Ross Jackson

A leading employment lawyer, Ross has extensive experience advising government, statutory authorities and public and private sector organisations in employment and industrial relations matters.

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