Since the COVID-19 pandemic, working from home has become a normal feature of many workplaces. By 2026, requests for flexible working arrangements are no longer the exception, they are a routine part of managing teams and workforce planning.
For employers, however, responding to a flexible work request under the Fair Work Act 2009 (Cth) (FW Act) can still be complex. Once an employee makes a valid request, this triggers specific obligations and necessitates a clear decision-making process, and missteps can expose an employer to unnecessary risk.
This article explores what makes a flexible work request “valid” under the FW Act.
What is a valid request?
For a flexible working arrangement request under section 65 of the FW Act to be valid, an employee must:
- be eligible to make the request;
- make the request because of one or more prescribed circumstances; and
- make the request in a particular form.
Eligibility to make the request
A request for flexible working arrangements under the FW Act can be made by an employee with:
- at least 12 months’ service; and
- a reasonable expectation of continuing employment on a regular and systematic basis (so, a true casual employee is not eligible to make a request)
Prescribed circumstances in which the request can be made
A request must be made in relation to at least one of the following reasons:
- the employee is pregnant;
- the employee is a parent or has responsibilities for the care of a child of school age or younger;
- the employee is a carer (within the meaning of the Carer Recognition Act 2010 (Cth));
- the employee has a disability;
- the employee is 55 years of age or older;
- the employee is experiencing family and domestic violence (or is a carer or support person for someone in their immediate family or household who needs that care/support because they are experiencing family and domestic violence).
There must be a connection between the request and the reason. For example, an employee is not entitled to flexible working arrangements simply because they are a carer, the request must be made in relation to the care they need to provide.
Form of the request
An employee’s request must be in writing and it must set out the details of:
- the arrangements sought; and
- the reasons for the request.
If a request is not a valid FW Act request
If the request is not a valid request under the FW Act, the employer is not strictly required to comply with the provisions of the FW Act in relation to it, however an employer should still deal with the communication carefully, contemporaneously document why it is not regarded as a valid FW Act request, and consider whether any other legal obligation is engaged. For instance, even if the FW Act provisions are not engaged, the circumstances may give rise to other employer obligations including those under:
- an enterprise agreement, modern award, contract or workplace policy;
- anti-discrimination laws
- WHS/OHS obligations
If a request is a valid request
For valid requests, employers must provide a detailed written response (which is required to adhere to specific content requirements) within 21 days, and (unless the employer grants the request – noting that a request can only be refused by an employer if there are reasonable business grounds for refusing) there are important steps which employers must take within that 21-day period.
For more information about flexible work requests, their validity, and the steps which an employer must take in addressing and responding to such requests (and/or for assistance in preparing the required written response to the request), reach out to our friendly Team.
