Australian employment law (Fair Work Act 2009) gives eligible employees the right to request flexible working arrangements (part-time, remote work, flexible hours). However, many employment contracts include clauses that appear to circumvent this right by stating flexibility is 'at the employer's discretion' or 'not available in this role'. Additionally, employers often refuse flexible work requests without properly considering them, claiming business needs conflict with flexibility. Before signing an employment contract, you should understand your legal right to request flexible work, what the employer can refuse (and on what grounds), and what the process is for making and responding to requests.
What is a Flexible work arrangements and request procedures?
Under the Fair Work Act 2009, eligible employees (employed for at least 12 months) can request flexible work arrangements (part-time work, flexible hours, remote work, or compressed weeks). The employer must consider the request and can only refuse if business grounds prevent accommodation. Employment contracts should clarify the right to request and the procedure.
Red flags to watch for
Fair Work law gives employees a statutory right to request flexibility. Any contract clause purporting to eliminate this right is unenforceable. Employers must consider requests and provide reasons if refusing.
Fair Work law sets out a process: employee must submit a written request, employer must consider within 21 days, meet with employee if needed, and provide written response with reasons if declining. The contract should reflect this process.
Employers can only refuse if refusing would create unjustifiable hardship (unreasonable cost, reduced productivity, work cannot be done flexibly). A blanket refusal without reasons is unlawful.
It's unlawful to penalize an employee for requesting flexible work. If the contract includes implicit or explicit penalties, this violates the Fair Work Act.
Employees with parenting or carer responsibilities have enhanced rights to flexibility. The contract should acknowledge this.
If the employer requires the employee to pay for home office equipment or internet for remote work, this may be unfair cost-shifting.
Your legal rights
The Fair Work Act 2009 (Cth), section 65, grants eligible employees (employed 12+ months) the right to request flexible work. Employers must genuinely consider requests and can only refuse on business grounds (unjustifiable hardship). Refusal must be documented with reasons. Penalizing an employee for requesting flexibility is unlawful. Awards and enterprise agreements may provide additional flexibility rights. The Fair Work Ombudsman provides guidance, and disputes can be referred to Fair Work Commission.
Questions to ask before you sign
- 1Do I have the right to request flexible work arrangements under my employment contract and Fair Work law?
- 2If I request flexibility (part-time, remote work, flexible hours), what is the process and timeline?
- 3On what grounds can you refuse a flexible work request?
- 4If flexibility is refused, will you provide written reasons?
- 5If I have parenting or carer responsibilities, do I have enhanced flexibility rights?
- 6Will you require me to fund home office equipment or internet if I work remotely?
- 7If my request is approved, can you change the arrangement on short notice, or is there a trial period first?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.