Flexible work requests: the right to ask, and when you can say no

We have been getting a steady stream of the same question lately: an employee has asked for a flexible working arrangement, the employer does not want to agree to it, and they want to know whether they are allowed to say no. It is a good question to be asking, because the rules changed in 2023, and saying no is no longer simply an internal decision.

Since 6 June 2023, the right to request flexible working arrangements comes with a process the employer has to follow, and a right for the employee to take the matter to the Fair Work Commission if it is refused or ignored. The request itself has not changed much. What has changed is what happens after it lands on your desk.

Who can ask

Under the Fair Work Act, an employee can request a flexible working arrangement if they have at least 12 months of continuous service, or, for a casual, they have been employed on a regular and systematic basis for at least 12 months with a reasonable expectation of continuing work, and they fall into one of the eligible circumstances. Those circumstances are that the employee is pregnant; is the parent of, or has responsibility for the care of, a child who is school-aged or younger; is a carer; has a disability; is 55 or older; is experiencing family and domestic violence; or is providing care or support to a member of their household or immediate family who is experiencing family and domestic violence.

A flexible working arrangement is a change to the hours, patterns or location of work. That might be different start and finish times, a move to part-time, a compressed working week, or working from home.

How a valid request is made

The request must be in writing, and it must set out the change the employee is asking for and the reasons for it. That written request is what starts the clock. A passing comment in the corridor is not a request under the Act. I would not lean on that too heavily though. If an employee is clearly asking, it is usually better to put the process on foot than to stand on formality and risk the request being treated as ignored.

What you have to do when a request lands

This is where the 2023 changes bite, and where most of the risk now sits. When you receive a valid request you must respond in writing within 21 days. Before you can refuse, you must have done a few things, and be able to show that you did them. You must discuss the request with the employee. You must genuinely try to reach an agreement with them, which can include an alternative arrangement that is not exactly what they asked for. You must have regard to the consequences of refusal for the employee. And you can only refuse on reasonable business grounds.

If you do refuse, the written response has to do more than say no. It must explain the business grounds you are relying on and how they apply to the request, set out any changes to the employee’s working arrangements you are willing to make, or state that there are none, and tell the employee about the ways the dispute can be resolved, including through the Fair Work Commission. A one-line “no, it does not suit us” is not a compliant response, and it is exactly the kind of response that ends up before the Commission.

What counts as reasonable business grounds

The Act gives examples, and they are practical rather than technical. Reasonable business grounds can include that the arrangement would be too costly; that there is no capacity to change the working arrangements of other employees to accommodate it; that it would be impractical to change other employees’ arrangements or to recruit new staff; that it would be likely to result in a significant loss of efficiency or productivity; or that it would be likely to have a significant negative impact on customer service. The word doing the work in most of these is “significant”. A minor inconvenience is not a reasonable business ground. The grounds also need to be genuine and tied to how your business actually operates, not a general reluctance to change.

The part that is new: the Commission can now step in

This is the shift employers most need to understand. Before the reforms, if you refused a request, that was largely the end of it. Now, if you refuse, or if you simply let the 21 days pass without responding, the employee can take the dispute to the Fair Work Commission. The Commission will first try to resolve it by conciliation or mediation, and if that does not work it can arbitrate and make binding orders, including an order that you grant the arrangement. In other words, your decision to refuse can now be reviewed, and overturned, by someone else. What the Commission looks at is the process you followed and the reasons you gave.

The net observation

You can still say no to a flexible working request. The right to request is not a right to receive. But the decision is no longer yours alone to make and forget. It is a decision you have to make properly, explain in writing, and be able to defend. In practice, the employers who come unstuck here are almost never the ones who refused for a poor reason. They are the ones who refused for a perfectly good reason but did it badly: no real discussion, no genuine attempt to find middle ground, a late or bare response, and no mention of the dispute process. Get the process right and a refusal on genuine grounds will generally hold. Get it wrong and the strength of your grounds may not save you.

If you have a flexible working request in front of you and you are not sure whether your grounds are strong enough, or how to word the response, that is worth getting right the first time rather than unwinding later.

This article is general information current as at August 2026 and is not legal advice. Flexible working arrangement rights are set by the Fair Work Act and, in some cases, an applicable award or enterprise agreement. How they apply depends on your circumstances. For a specific matter, obtain advice.

Casual is no longer just a label

In our conversations with business owners lately, one thing keeps coming up: many are not aware that the rules around casual employment changed back in 2024, and that the way they engage and document their casuals may no longer hold up.

It is an easy one to miss. The change was not loud, but it was significant. Since 26 August 2024, calling someone a casual is no longer enough to make them one.

The Closing Loopholes reforms changed the definition of casual employment, and with it the way employers need to think about casual contracts. A written contract that says “casual” still matters, but on its own it no longer settles the question. What now governs casual status is the real substance and practical reality of the working relationship. If it has been a while since you looked at your casual arrangements, now is a good time.

What “casual” now means

Under the current definition, a person is a casual employee only if two things are true at the start of employment. First, the employment relationship has no firm advance commitment to continuing and indefinite work. Second, the employee is entitled to a casual loading or a specific casual rate of pay under an award, enterprise agreement or their contract.

The phrase that carries the weight is “no firm advance commitment”. Whether that commitment exists is assessed on the real substance of the relationship, not just the words in the contract. The Fair Work Act points to several considerations: whether the employer can choose to offer work and the employee can choose to accept or reject it, whether continuing work is likely to be available in the kind of work the employee does, whether permanent employees are doing the same work, and whether there is a regular pattern of work. A regular pattern does not, by itself, make someone permanent, but a settled, predictable and ongoing arrangement can point away from genuine casual employment.

The practical consequence is simple to state. If you engage someone as a casual, pay the loading and paper it correctly, but roster them on the same fixed shifts week after week with an evident mutual expectation that the work continues, the label may not hold. The relationship, not the paperwork alone, is what a court or the Fair Work Commission will look at.

What a casual contract still needs to do

None of this makes the written contract less important. It makes it more important, because it is your first line of evidence and the place you set the terms clearly. A sound casual contract should:

state plainly that the person is engaged as a casual employee;
identify the casual loading, commonly 25 percent, but check the relevant award or agreement, and state that it is paid in lieu of the entitlements casuals do not receive, such as paid annual and personal leave, notice of termination and redundancy pay;
make clear there is no firm advance commitment to ongoing work, that each engagement is a separate engagement, and that hours are not guaranteed and may be offered and declined; and
reflect how you actually intend to engage the person, so the document and the day-to-day reality line up.

That last point is the one that has changed in emphasis. The contract needs to match the working arrangement, not paper over it.

The casual loading, and why the wording matters

The casual loading is not just a number on a payslip. If a casual is later found to have been, in truth, a permanent employee, the loading you have already paid can generally be set off against claims for the entitlements they would have received, but usually only where the contract has identified the loading as compensating for those specific entitlements. Loose wording here can cost you the offset. Precise wording protects it.

The Casual Employment Information Statement

Every casual must be given the Casual Employment Information Statement, before they start or as soon as practicable afterwards. You then need to give it again during their employment: for most employers after six months, after twelve months, and every twelve months after that; for small business employers, after twelve months. It is a small administrative step that is easy to miss and easy to get right, and the Fair Work Ombudsman does look for it.

The employee choice pathway to permanent work

The old casual conversion process has been replaced by an employee choice model. A casual who has been employed for at least six months, or twelve months in a small business, and who believes they no longer meet the casual definition, can notify you in writing that they want to become permanent. You must consult with them and respond in writing within twenty one days, either accepting the change or refusing it. You can only refuse on limited grounds, for example that the employee still meets the casual definition, or for genuine operational reasons, and your written response has to explain the basis for a refusal. Getting that response right, and on time, matters.

The net observation

Casual employment is still a legitimate and useful arrangement, and nothing here suggests avoiding it. What has changed is that the label now has to be earned by the substance of the relationship, not just asserted in the contract. The employers who stay on the right side of this do three things together: they use a properly drafted casual contract, they give the Casual Employment Information Statement on time, and they make sure the way they actually engage their casuals matches the casual description. Where those three line up, casual employment remains straightforward. Where they drift apart, the risk sits with the employer.

If you would like your casual contracts reviewed against the current definition, or you are weighing up whether a long-standing casual is still genuinely casual, that is exactly the kind of question worth getting a second set of eyes on before it becomes a dispute.

This article is general information current as at August 2026 and is not legal advice. The rules for casual employment are set by the Fair Work Act and the applicable award or enterprise agreement, and how they apply depends on your circumstances. For a specific matter, obtain advice.

When performance management triggers a claim

Something has shifted in how performance management plays out. A few years ago, a manager could raise underperformance, set expectations, and work through a plan with the employee still at their desk. That is happening less often. Increasingly, the moment an employee learns they are being performance managed, they go on sick leave, and in a growing number of cases they lodge a workers compensation claim for a psychological injury said to arise from the process itself.

This is not a reason to avoid performance management. It is a reason to do it properly. On the current record, the employers who get into trouble are not the ones who addressed underperformance. They are the ones who did it without a defensible process behind them.

The pattern I am seeing

The sequence is now familiar. Performance concerns are raised, sometimes for the first time in a formal meeting. Within days the employee is certified unfit for work, often with a certificate citing stress or anxiety. Sometimes a workers compensation claim follows, naming the performance process, or the manager, as the cause of a psychological injury. The performance issue that started it all is left unresolved, and the conversation shifts from capability to injury, conduct and process.

For the employer this is destabilising. The underperformance does not go away. The manager who raised it, often correctly, now feels exposed. And the file that should have been about work quality is suddenly about whether the process was fair.

Why it is happening

Several things are converging. Employees and their advisers understand the general protections regime far better than they once did. They understand that taking sick leave is the exercise of a workplace right, and that psychological injury claims are taken seriously. Awareness of psychosocial hazards, and of the employer’s positive duty to manage them, has risen sharply, and rightly so. There is also, in some cases, a tactical element: a claim can pause a process, shift the ground, and change the negotiating position.

It would be a mistake to read every claim as tactical. Many are genuine. Performance conversations are stressful, and a clumsy or aggressive process can cause real harm. That is precisely the point. Whether a claim is genuine or defensive, the employer’s protection is the same: a process that was reasonable, proportionate and procedurally fair on the face of the record.

Where the risk actually sits

Two areas carry the real exposure.

The first is the general protections. Adverse action is broad. It is not limited to dismissal. It includes altering an employee’s position to their prejudice, or treating them differently because they have exercised a workplace right, such as taking sick leave or making a complaint. If an employee alleges that a step in the performance process was taken because they went on leave or lodged a claim, the reverse onus applies. The employer is presumed to have acted for that reason unless it can prove otherwise. That is a high bar, and it is met with contemporaneous records, not recollection.

The second is workers compensation and the psychosocial duty. Reasonable management action taken in a reasonable manner is generally excluded from workers compensation liability for psychological injury. The words that carry the weight are “reasonable” and “in a reasonable manner”. Management action that is sound in substance but delivered poorly, without notice, without a genuine chance to respond, or with a predetermined outcome, can lose that protection. The same failures that make an action unreasonable for compensation purposes tend to be the ones that make it look like adverse action.

Why procedural fairness matters more than ever

Procedural fairness used to be framed mainly as protection against an unfair dismissal claim at the end of a process. It now does far more work than that. It is the single thread that runs through every risk above. A fair process is what makes management action reasonable for workers compensation purposes. It is what rebuts the presumption under the general protections. It is what shows a psychosocial hazard was managed rather than created.

In practice, procedural fairness on the current landscape means a few things done consistently. The employee knows what the concern is, in specific terms, before any meeting. They are given a genuine opportunity to respond, and the response is actually considered, not noted and set aside. Support is offered, including a support person and, where the business has one, an employee assistance program. Timeframes are reasonable, and the employee is not set up to fail. And the outcome is not decided in advance.

None of this is new law. What has changed is the cost of getting it wrong, and how quickly a thin process is tested.

Practical steps to mitigate the risk

Start the record before the meeting, not after. Set out the specific concerns, the standard expected, and the support available, in writing.
Keep management action genuinely reasonable and proportionate. Separate capability from conduct; they are different processes and they blur at your cost.
When an employee goes on sick leave mid-process, do not treat the leave as the problem. Manage the medical position properly, seek appropriate capacity information, and keep the performance issue on foot without pressuring an employee who is unwell.
If a workers compensation claim is lodged, do not stop managing, but take advice before the next step. The next step is the one that gets characterised as adverse action.
Document contemporaneously throughout. On the current record, the reverse onus means the absence of a record is read against you.

The net observation

Performance management has not become something to avoid. It has become something to do deliberately. The employers who manage underperformance early, fairly and on the record are in a strong position even when a claim lands. The ones who improvise are not. Procedural fairness is no longer the last step before a dismissal; it is the protection that holds the whole process together from the first conversation.

If you are dealing with a performance matter that has turned, or you want a process reviewed before it does, this is exactly the kind of work where an independent set of eyes helps.

This article is general information current as at August 2026 and is not legal advice. For a specific matter, obtain advice on your circumstances.

AI Is Reshaping How the Fair Work Commission Handles Claims, and Employers Need to Keep Up

The Fair Work Commission is overhauling how it manages general protections dismissal claims, and AI is a significant part of why. If you have recently terminated an employee or are worried about a potential claim, here is what is changing, what is driving it, and what you need to do about it.

Why is the Commission doing this?

The short answer: the system is under enormous strain, and AI is a significant part of the reason. There were 6,209 general protections dismissal applications in 2024-25, a surge of 57 per cent in Q1 2025-26 against the three-year average. Total FWC applications reached more than 44,000 in 2024-25, 24 per cent above the five-year average, and the Commission is now projecting between 50,000 and 55,000 lodgements for 2025-26, growth of over 70 per cent in just three years.

Three things in particular are driving it. First, AI-generated claims: AI tools have significantly reduced the time and effort involved in commencing a claim, and while many applications are generically framed, they still require employers to devote time and resources to responding. Second, paid agents operating at volume: around 46 per cent of applicants were represented by a lawyer or paid agent, and about a quarter of those by a small group of just eight regular paid agents who, unlike lawyers, operate outside any professional conduct framework. Third, claims used as settlement leverage: a significant portion appears to be unfair dismissal claims in substance, reframed by AI tools as general protections applications to get around eligibility requirements and leverage an early settlement.

What changed, and when?

On 12 November 2025, the Commission announced significant reforms with immediate effect. The key reform is the application form: employee applicants filing their Form F8 must now clearly state the alleged breaches, replacing the old practice of just ticking boxes and filtering out generic AI-generated applications.

Other significant changes: late claims face a higher bar, with applicants who lodge after the 21-day deadline needing to explain why exceptional circumstances apply. Employer responses must be detailed, giving reasons for any jurisdictional objections in the Form F8A, as this may be the only opportunity to do so. Conferences are now shorter and settlement-focused, typically around one hour. And there is a stronger emphasis on early triage and case management.

Does this mean employers can sit back?

No, and this is the point most employers get wrong. Do not assume early resolution means no response is required. The usual guidance still requires employers to respond within 7 days of receiving the application. Failing to respond within the deadline, or filing a weak, generic response, can put your entire position at risk.

The safer approach is to act immediately: diarise the 7-day response deadline the moment you receive the application, review it carefully and identify any jurisdictional objections, gather all relevant documentation including contracts, warnings, performance records and termination letters, prepare your position and the genuine reason for dismissal, seek HR or legal advice before deciding how to respond, and detail your jurisdictional objections fully in the Form F8A.

What you still need to be able to show

Early resolution processes do not reduce the underlying risk. If a claim proceeds, you still need clear, documented evidence of the genuine and documented reason for the dismissal, the process followed before termination was decided, any prior warnings, performance discussions or PIPs, relevant policies, contracts and acknowledgements, whether any workplace rights were exercised before the dismissal, and why the decision was not connected to any prohibited reason under the Fair Work Act.

Settlement amounts in general protections matters appear to be trending upward, with more cases resolving above the 10,000 dollar mark. Because these matters are uncapped and often complex, employers may feel pressure to settle early even where a claim’s merits are weak. Strong documentation is your best leverage at the negotiating table, not just in a hearing.

The takeaway for Australian employers

The Commission is clearly moving toward earlier intervention, stronger case management and a more settlement-focused system, and it expects a higher level of preparation from the outset. For small and medium businesses this is both an opportunity and a warning. Faster processes are good, but faster processes that catch you underprepared, without documentation, without proper termination procedures, without compliant contracts, are far worse than the old system. Preventative HR is still the best defence. Get the foundations right before a dispute arises and you will be in a much stronger position, whether a claim is resolved in a 60-minute settlement conference or proceeds further.

This article is general in nature and does not constitute legal advice. Employment law matters are fact specific. If you have received a general protections application, seek advice from a qualified HR professional or employment lawyer promptly.

Updating your Drug & Alcohol Policy? Don’t skip the consultation.

Drug and alcohol testing is one of those workplace issues where the safety case is obvious and the legal path to getting there is not. The recent Opal Packaging litigation is a useful reminder that even a well-intentioned, safety-focused change to a testing regime can come unstuck if the consultation isn’t done properly.

What happened at Opal

Opal Packaging wanted to update its Alcohol and Other Drugs (AOD) policy. The proposed changes were unremarkable on their face. They included removing self-testing breath alcohol units, adjusting random testing procedures, and updating how non-negative results for prescription medications were managed.

The AMWU disputed the changes, arguing Opal hadn’t met its consultation obligations under the Enterprise Agreement and the model WHS Act. The Fair Work Commission agreed. Deputy President Masson found that while the proposed changes had “a sound rationale”, the Company’s direction to comply with them wasn’t reasonable because employees and their union hadn’t been given proper information or a genuine opportunity to influence the change.

The dispute then moved to the Federal Court on a separate question about how dispute resolution “status quo” clauses operate. The Court ultimately allowed Opal’s changes to proceed, but the consultation failure finding still stands as a warning to employers.

The lesson is bigger than testing

Drug and alcohol testing happens to be the trigger here, but the same principle applies to any significant change to working conditions, including surveillance policies, shift structures, performance management frameworks and dress codes. If your Enterprise Agreement, award or WHS legislation requires consultation, then consultation is not a courtesy. It’s a precondition.

And consultation isn’t just sending a memo. The Commission has been consistent on what genuine consultation requires:

Provide employees and their representatives with enough information to understand what’s changing and why.
Give them a real opportunity to express their views, meaning enough time and a genuine forum, not a one-week comment window on a finalised policy.
Genuinely consider what they raise. You don’t have to agree, but you do have to engage.
Document the process. If you can’t evidence consultation, it didn’t happen, as far as a tribunal is concerned.

If you’re reviewing your testing policy this year

Whether you’re tightening up a policy, introducing testing for the first time, or responding to a specific incident, the steps are the same:

Check what consultation obligations apply. This means your Enterprise Agreement (if you have one), any modern award provisions, and the consultation requirements under the WHS Act in your jurisdiction. In WA, that’s the Work Health and Safety Act 2020.
Build the safety case. Why is testing necessary in this workplace, in these roles? Random testing in a warehouse or transport context is easier to justify than random testing in a low-risk office environment.
Set out the procedure clearly. Who tests, when, how, what happens with a non-negative result, what support is available for an employee with a positive result, and how prescription medication is handled. Vague procedures are the second biggest source of disputes after consultation failures.
Consult properly. Share the draft, give people time, run a meeting or two, and write down what you heard and how you responded. Even where you don’t change the policy, evidence of having considered the feedback is what gets you across the line.
Train your supervisors. Most testing disputes don’t start with the policy. They start with how a particular test was conducted on a particular day.

My take

Opal isn’t a cautionary tale about drug testing. It’s a cautionary tale about process. The Company had a sensible policy update and a real safety rationale, and they still ended up in the Commission because consultation was treated as a formality rather than a substantive requirement.

For most small and medium employers, the lesson is simple. A good policy isn’t enough. The way you introduce it, and the way you evidence that introduction, matters just as much.

If you’re developing or refreshing an AOD policy, the HR document library in Workplace Automate includes a drug and alcohol policy you can adapt to your workplace, and every acknowledgement is recorded against the version each person read.

Termination isn’t always the answer

Underperformance is the issue most SME owners would rather avoid. When an employee starts to slip, the instinct is often: how do we move them on? And I get it, underperformance is frustrating, time-consuming and expensive.

But here is the reality: termination is rarely the cheapest, fastest or safest option. A well-structured Performance Improvement Plan (PIP) usually is. For many SMEs, the real issue is not a performance problem. It is a performance management problem.

Why PIPs work

Clarity improves performance. Most underperformers are not lazy. They are unclear, unsupported or misaligned. A good PIP forces the conversation that should have happened months ago, and often delivers results within weeks.

Replacing employees is expensive. Recruitment, onboarding and training can cost 50 to 150 per cent of an employee’s annual salary, before you factor in lost momentum and team morale. Rehabilitation is often a fraction of the cost.

It builds loyalty and culture. Employees supported through a difficult period often become some of your strongest team members. Your wider team notices when businesses invest in people instead of immediately looking for the exit door.

It protects your business. Whether you are operating under the Small Business Fair Dismissal Code or the standard unfair dismissal regime, a fair and well-documented PIP is one of the strongest protections against unfair dismissal and general protections claims.

A PIP should never be a paper trail for termination

Done properly, it should include clear expectations and measurable goals, realistic timeframes, genuine support and resources, regular documented check-ins, and the employee’s right to a support person at meetings.

If you avoid the hard conversation, you are not protecting your business. You are usually just delaying the cost.

Major Workplace Changes Ahead: What Businesses Need to Prepare for in 2026

Australian businesses are facing a wave of workplace and compliance changes that will significantly impact how they manage payroll, superannuation and employee obligations.

One of the most talked about changes is the move toward more frequent superannuation payments, requiring employers to align super with pay cycles rather than quarterly contributions. While this may seem like a simple administrative change, it will require businesses to review payroll systems, cash flow planning and internal processes to ensure ongoing compliance.

At the same time, there is increasing focus on workplace compliance across key areas including employee classification, record keeping and adherence to modern awards. Regulators are continuing to take a stricter approach, with greater scrutiny on businesses that fail to meet their obligations.

For many businesses, the challenge is not understanding that change is happening; it’s knowing how to practically implement these changes without increasing administrative burden or risk.

This is where having the right systems, documents and processes in place becomes critical.

What This Means for Your Business

Businesses should be reviewing:

Payroll and superannuation processes
Employment contracts and classifications
Workplace policies and record keeping practices

Taking a proactive approach now will reduce risk, avoid penalties and ensure your business is prepared for upcoming changes.

Don’t Wait Until It Becomes a Problem

With compliance requirements continuing to evolve, businesses that rely on outdated documents or manual processes are more exposed than ever.

Having access to up-to-date HR resources and practical support can make a significant difference in staying compliant without adding unnecessary complexity.