What’s the real issue?
Since the 2023 changes to the Fair Work Act 2009 (Cth), how you handle a flexible work request now matters as much as whether you say yes or no. Under section 65B, the Fair Work Commission (FWC) can now arbitrate refused requests — and order you to grant one anyway if you did not follow the right process.
The numbers tell the story
Disputes lodged under section 65B jumped from 6 in 2022–23 to 207 in 2023–24 and 306 in 2024–25. A flexible work request is no longer a courtesy — it triggers a statutory process the Commission is actively policing.
What this looks like in practice
A composite of matters we see regularly (details changed; not a real client).
A community services organisation employed a coordinator of three years. After becoming the primary carer for a school-aged child, she asked in writing to work from home two days a week. The organisation had just rolled out a “return to office” policy, and a manager replied by email: “Unfortunately we can’t accommodate working from home — our policy requires everyone on site.” No meeting, no alternative explored, no discussion of the impact on her.
She lodged a dispute. At conciliation, the organisation’s position was exposed: it had not genuinely discussed the request, had leaned on a blanket policy rather than the specific facts, and had not weighed what refusal would mean for her — despite the role having been performed remotely before without any drop in output.
The matter settled with a two-day arrangement. The answer might have been defensible — but the process never gave it the chance.
What does the law say — and how must it be applied?
The right to request lives in section 65. If a request is not valid, there is no dispute to arbitrate — so validity matters.
The validity tests
- Eligibility. At the time of the request the employee must fall within a defined circumstance — pregnancy, caring for a young child, being a carer, disability, being 55 or older, or family and domestic violence.
- Connection and service. The change must be because of that circumstance, and non-casuals need 12 months’ continuous service (casuals need a reasonable expectation of ongoing regular work).
- Wholly in writing. The request, the change sought and the reasons must all be in writing.
Responding — the 21-day clock
You must respond in writing within 21 days: grant it, agree an alternative, or refuse. You can only refuse after you have discussed the request, genuinely tried to reach agreement, had regard to the consequences for the employee, and can point to reasonable business grounds. The non-exhaustive examples are:
- Excessive cost;
- No capacity or practicality to adjust other employees’ arrangements;
- A likely significant loss of efficiency or productivity; or
- A likely significant negative impact on customer service.
Your written refusal must explain how those grounds apply, note any changes you will offer, and point to the dispute provisions.
What the decisions show
Evidenced grounds succeed; bare assertion does not. The Commission has warned that “generic and blanket HR answers are not sufficient alone”, and a Full Bench confirmed that inconsistency with an enterprise agreement, on its own, is not a reasonable business ground.
A note on Victoria (proposed, not law)
Victoria has proposed a broader flexibility entitlement not tied to the current eligibility categories. This remains a proposal only and is not law. The federal Fair Work Act framework above continues to govern nationally.
What are the risks and pain points for employers?
Lose an arbitration and the FWC can deem a non-response a refusal, reject your grounds, or order you to grant the request. Breaching an FWC order carries maximum civil penalties of $19,800 for an individual, $99,000 for a small business (fewer than 15 employees) and $495,000 for larger employers (as at 30 June 2026). The subtler risks are as costly:
- General protections exposure. A flexible work request is a protected workplace right; adverse action even partly because of one is dangerous.
- Blanket policies that backfire. A direction to attend the office is not a reasonable ground to refuse — and you must be able to evidence your grounds, not just demand the employee’s.
- Work health and safety. WHS duties extend to the home workspace; a genuinely assessed safety concern can support a refusal, a general reluctance cannot.
Our top five tips: what every employer should do
- Treat every written request as a 21-day clock. Diarise the deadline the day it arrives and respond in writing within 21 days — even if the answer is “yes”.
- Meet and genuinely explore options before refusing. Look for workable alternatives (a trial period, fewer days, adjusted hours) and record that you did. A genuine attempt to reach agreement is a legal precondition to refusal, not a nicety.
- Ground any refusal in specific, evidenced business reasons. Tie the grounds to this role and this request. Drop generic policy lines. If you rely on productivity, customer-service or safety impacts, be ready to prove them.
- Write the refusal properly. Set out the business grounds and how they apply, state any changes you can offer (or that there are none), and reference the dispute provisions. A sloppy response invites the Commission to send you back.
- Review your policies and train your managers now. Update return-to-office and hybrid policies so they expressly allow flexible work as an exception, give managers a clear decision framework, and require documented reasoning for every decision.
Frequently asked questions
- Who is eligible to request flexible working arrangements?
Employees within a defined circumstance at the time of the request — pregnancy, parenting or caring for a school-aged or younger child, being a carer, having a disability, being 55 or older, or experiencing (or supporting someone experiencing) family and domestic violence — with at least 12 months’ continuous service (with an additional test for casuals).
- Does the request have to be in writing?
Yes. The request, the change sought and the reasons must all be in writing. A request that is not wholly in writing is not valid, and an invalid request cannot found a dispute in the FWC.
- Can we refuse a request?
Only after you have discussed it, genuinely tried to reach agreement, considered the consequences of refusal for the employee, and can point to reasonable business grounds — and only via a written response that sets out those grounds and how they apply.
- What counts as “reasonable business grounds”?
Non-exhaustive examples include excessive cost, no capacity or practicality to rearrange other staff, a likely significant loss of efficiency or productivity, or a significant negative impact on customer service. It is always fact-specific, and generic HR reasoning will not cut it.
- Can we refuse working from home because our policy requires office attendance?
Not on that basis alone. A direction to attend the office is not automatically a reasonable business ground. You must assess the individual request on its merits and be able to evidence the specific operational impact.
- Is inconsistency with our enterprise agreement enough to refuse?
No. A Full Bench has confirmed that inconsistency with an enterprise agreement, by itself, is not a reasonable business ground; there must still be an underlying business reason for the refusal.
- What can the Fair Work Commission do if we get it wrong?
It can deem a non-response a refusal, rule that your refusal lacked reasonable business grounds, order you to grant the request or an alternative arrangement, or require you to redo the process. Breaching a resulting order carries significant civil penalties.
- Do we have work health and safety duties for someone working from home?
Yes. Your WHS obligations extend to the home workspace, including ergonomic and psychosocial risks. Genuinely assessed safety concerns can support a refusal, but a general reluctance to allow remote work will not.
How Harrisons can help
Get a flexible work request wrong and the cost is real: an FWC order to grant the arrangement anyway, civil penalties up to $495,000, and a general protections claim on top. The process is where most employers come unstuck — and it is entirely fixable.
At Harrisons, we help Australian employers get it right the first time. We can:
- Review and update your flexible work and hybrid policies and response templates;
- Coach your managers on how to discuss, decide and document requests; and
- Draft compliant, defensible written responses that stand up if a dispute reaches the Fair Work Commission.
Get in touch with our team today. A smart first step: let us review your flexible-work request process and response templates before your next request lands.
This article provides general information for Australian employers and is not legal advice. Workplace laws change and how they apply depends on your specific circumstances. For advice tailored to your organisation, contact Harrisons.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
