Flexible Work Under the Fair Work Act – What Employers Need to Know

Led by Special Counsel Ash Borg from the Employment Law & Investigations team, the April 2025 edition of the HR Breakfast Club focused on leading an engaging and informative session for HR professionals on the changes to Flexible Working under the Fair Work Act 2009 (FW Act).

Ash’s discussion provided insights into key points including:

• The current arrangements for Flexible Work;
• The Legislative Framework that informs the arrangements and the specifics of it;
• A review of relevant case law that highlights recent “wins” for flexible arrangements; and
• Recommendations for employers considering flexible working arrangements.

The Current Arrangements of Flexible Work

Under the FW Act, some employees can request an alteration to their working conditions to better suit their personal needs. This includes changes to hours of work, patterns of work and locations of work. Examples of such arrangements can include changes to start and finish times, split shifts or job sharing, and working from home (WFH). However, both employers and employees must follow certain procedures under the FW Act following a request for flexible work arrangements.

The Legislative Framework

Under the FW Act, circumstances that can ground flexible work requests now include domestic violence.

The FW Act also permits casuals to make requests for flexible working arrangements after an equivalent of 12 months’ service, includes where an employee has converted from casual to permanent employment.

The FW Act also outlines the formal requirements of requesting flexible arrangements which include the request be made in writing and set out the details of the change sought and the reasons for the change.

The legislation also outlines that employers must respond within 21 days regardless of grant or refusal of the request, and that a refusal must only be due to reasonable business grounds and is to include detailed reasons for refusal.

Ash then outlined the Secure Jobs and Better Pay amendments that came into effect on 6 June 2024 and their impacts on flexible work arrangements. This included the process in responding to requests, the process in refusing requests, and the Fair Work Commission’s (FWC) role in managing disputes surrounding requests by conciliation and arbitration.

Recent Cases Surrounding Flexible Working Arrangements

Ash then gave a review on the relevant case law surrounding flexible working arrangements, including the key case Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 (10 November 2023), and the experience of unions in disputes before the FWC.

Recommendations for Employers

Finally, before opening up the floor to discussion, Ash provided the key recommendations and tips for success for employers when considering requests for flexible working arrangements. These key tips and recommendations included:

• Considering flexible arrangements under the terms of the enterprise agreements;
• Confirming that an attribute under s 65(1A) of the FW Act exists;
• Understanding the requirement for a ‘nexus’ between the attribute and the request;
• Ensuring that the employee has a genuine need for and not a mere preference for flexibility;
• Ensuring that the technical requirements of s 65 or the agreement are satisfied; and
• Remembering that the FWC is a ‘last resort’ in settling disputes surrounding requests for arrangements.

Closing Remarks

The April session of HR Breakfast Club highlighted amendments and case law on flexible working arrangements. Ash provided key information and insights and practical guidance for employers to ensure that they are compliant with the changes.

If you are an HR professional and would like to attend our future HR Breakfast Club forums, please visit our monthly forum page and register to attend.

If you have any questions or queries about the information in this summary, or if you are experiencing any issues and need advice, please contact the BAL Lawyers Employment & Investigations team on 02 6274 0999.