The COVID-19 pandemic dramatically reshaped expectations about work in Australia, with many employees now demanding flexible working arrangements as a matter of course. However, under the current provisions of the Fair Work Act 2009 (Cth) (FWA), particularly section 65, access to flexible work remains limited to a narrow cohort of employees.
While this section provides a statutory right to request flexible working arrangements, eligibility is tightly constrained. It applies to parents of school-aged children, carers recognised under the Carer Recognition Act 2010, individuals with a disability, people aged over 55, and those experiencing or supporting someone affected by domestic or family violence. Even for those who qualify, the right is only a right to request, not a right to receive, flexible work.
Under s 65(2), an employee must have twelve months’ continuous service before they can make a request. Employers must respond within 21 days but may refuse on “reasonable business grounds,” which include cost, capacity, impracticality, and adverse impacts on productivity or customer service. These criteria offer broad discretion to employers and can be used to reject valid requests without real recourse for employees.
During recent facilitated discussions between unions and employer groups, convened by the Minister for Workplace Relations, a range of reform proposals were put forward. Union representatives advocated for a broader and more inclusive scope of s 65, reflecting the lived experiences of employees not currently captured under the statute. These include people needing flexibility for informal care duties, psychological appointments, medical conditions, or tertiary study commitments.
From the employer side, concerns centred on administrative burden, especially for small businesses. A representative from a rural law firm argued that an expanded s 65 would overwhelm existing HR resources, particularly in environments where human resources functions are handled by senior staff or office managers. The issue is real; however, these challenges are not insurmountable, and certainly not sufficient to justify maintaining the status quo.
Employers also raised issues around employee equity and workplace morale. There is a risk, they argued, that staff who don’t qualify for flexible work could become disenfranchised if they see colleagues receiving preferential treatment. While this concern is valid, it points more to a need for clear, transparent frameworks for evaluating flexible work requests, rather than limiting access altogether.
Another frequently raised concern was the potential impact on workplace culture and team-based productivity. Employers highlighted the value of in-person collaboration, citing studies that suggest physical presence boosts engagement and cohesion. However, the pandemic demonstrated that hybrid and remote work models can be highly effective, especially when flexibility is implemented thoughtfully. In fact, research indicates that flexible working arrangements are often linked to increased productivity, improved wellbeing, and stronger employee retention.
Legal precedents offer valuable insight into the implications of a narrow s 65. In AMWU v Mildura City Council [2012], the Commission upheld the employer’s refusal to accommodate a flexible work request due to logistical difficulties and inadequate supervision. Yet, in Fyfe v Ambulance Victoria [2023], the employer’s failure to properly engage with a flexible work request related to childcare responsibilities was deemed unlawful. These cases highlight the need for greater clarity and consistency in how s 65 is applied.
Ultimately, any reform must strike a balance between employer discretion and employee accessibility. Suggestions for compromise include reducing or removing the twelve-month service threshold, simplifying application procedures, and developing national best practice guidelines for assessing flexible work requests. These measures would not only empower more employees to request flexibility but would also provide employers with a structured approach to handling such requests fairly and transparently.
Expanding s 65 is not about undermining business; it’s about recognising the changing nature of modern work. When implemented effectively, flexible working arrangements can enhance productivity, support employee wellbeing, and ultimately lead to stronger organisational outcomes. If Australia is serious about fostering inclusive, future-ready workplaces, it must reform the law to better reflect the lived realities of its workforce.
Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.
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