Flexible Work Arrangements Under the Fair Work Act: What Employers Must Know in 2026

The right to request flexible working arrangements has existed under the Fair Work Act 2009 since 2009 — but the Closing Loopholes Act amendments, which took effect in June 2023, dramatically strengthened employees' rights and employers' obligations in this area.

If you think flexible work requests are just a box-ticking exercise, the new rules require a fundamental rethink.

Who Can Request Flexible Work?

Under section 65 of the Fair Work Act, certain employees have the right to request a change to their working arrangements. To be eligible, an employee must:

1. Have completed at least 12 months of continuous service (or, for casuals, be a long-term casual with a reasonable expectation of continuing employment)
2. Be in one of the following circumstances:
   • A parent or guardian with responsibility for a child who is of school age or younger
   • A carer (within the meaning of the Carer Recognition Act 2010)
   • A person with a disability
   • 55 years of age or older
   • Experiencing family or domestic violence
   • Providing care or support to a member of their household or immediate family who requires care or support due to family or domestic violence

Note: the list expanded significantly in 2023. The addition of older workers (55+), carers, and people experiencing or providing support to those experiencing domestic violence was part of the Secure Jobs, Better Pay amendments.

What Kinds of Changes Can Be Requested?

A flexible work request can cover any change to working arrangements, including:

• Changes to hours of work (starting time, finishing time, total hours)
• Changes to work patterns (e.g., compressed working weeks, split shifts)
• Changes to the location of work (e.g., working from home for some days)
• Part-time or job-sharing arrangements

The request must be in writing and must set out the change requested and the reason for the request.

Your Obligations When You Receive a Request

Step 1: Acknowledge and Discuss

Before the 2023 amendments, employers could simply refuse requests in writing with reasons. The new rules require genuine engagement. You must:

• Discuss the request with the employee in good faith
• Genuinely try to reach an agreement that accommodates the employee's circumstances
• Consider all alternatives — not just the specific arrangement requested

This genuine engagement requirement is enforceable. An employer who refuses without genuine discussion is in breach of the Act.

Step 2: Respond Within 21 Days

You must respond to the request within 21 days. The response must be in writing and must either:

• Grant the request
• Refuse the request on reasonable business grounds, with a written explanation of those grounds and any alternatives considered

Failing to respond within 21 days is itself a breach of the Fair Work Act.

Step 3: If You Refuse

Refusing a flexible work request is still permitted — but only on "reasonable business grounds." Under the post-2023 rules, the Act provides more guidance on what constitutes reasonable business grounds, including:

• The proposed arrangement would be too costly for the employer
• There is no capacity to change the working arrangements of other employees to accommodate the request
• It would be impractical to change the working arrangements of the employer's other employees or to recruit new employees
• The proposed arrangement would likely result in a significant loss in efficiency or productivity
• The proposed arrangement would likely have a significant negative impact on customer service

Critically, the reason for refusal must now be specific and genuine — not a generic statement that the arrangement "does not suit the business."

The Fair Work Commission's New Role

Since June 2023, the Fair Work Commission has the power to hear disputes about flexible work requests and, if the Commission finds the refusal was unreasonable, to order the employer to grant the flexible working arrangement or a variation of it.

Previously, the Commission could only conciliate — it could not make orders. The new enforcement power fundamentally changes the stakes.

If an employee believes their request was refused unreasonably, they can:

1. Attempt to resolve the dispute through the employer's internal dispute resolution process
2. Apply to the Fair Work Commission for an order

This is a significant shift. Flexible work requests are no longer matters that employers can dispose of with a form letter — unreasonable refusals are now judicially enforceable.

Practical Implications for Small Businesses

You Cannot Simply Say No

A blanket refusal — "we require everyone to work in the office" — is almost certainly insufficient if a specific employee with care responsibilities or a disability requests to work from home some days. You must engage with the specific request and show that you genuinely considered alternatives.

Document Everything

Document your discussions with the employee, the alternatives you considered, and the reasons for your decision. If the matter ends up before the Fair Work Commission, your documentation is your evidence that you engaged in good faith.

Consider the Business Case for Flexibility

Beyond compliance, there is a strong business case for flexible work:

• Higher employee retention (particularly for working parents and older workers)
• Access to a wider talent pool
• Improved employee wellbeing and productivity

Many employers who initially resist flexible work arrangements find that once implemented, they create no material disruption and significantly improve staff retention.

Have a Clear Flexible Work Policy

A clear written policy on flexible work requests — covering how to make a request, the assessment process, and the grounds for refusal — helps ensure consistent and defensible decisions.

Flexible Work and Modern Award Variations

Some modern awards have specific provisions about flexible working arrangements. For example, the Closing Loopholes reforms introduced provisions in some awards for "regular patterns of hours" for part-time workers that provide more flexibility in how hours are structured.

Check the applicable modern award for your industry — there may be specific flexibility provisions that give you and your employees more options than the baseline NES.

The Overlap with Anti-Discrimination Law

Refusing a flexible work request from an employee with a disability — where the arrangement would enable them to continue working — can constitute disability discrimination, in addition to a Fair Work Act breach.

Similarly, refusing requests from pregnant employees or employees on or returning from parental leave can constitute sex discrimination.

Consider anti-discrimination implications alongside your Fair Work Act obligations when assessing any flexible work request.

How Reguladar Helps

Flexible work obligations are part of a broader set of employment law changes from recent years. Reguladar tracks your specific obligations under the Fair Work Act — including the new flexible work requirements — and surfaces them in your personalised compliance dashboard.

When the law changes, Reguladar tells you what changed, what it means for your business, and what steps you need to take.

Understand your complete employment law obligations. Start your free compliance check at Reguladar and stay ahead of Fair Work Act developments in 2026.