In Australia, there is currently no legal course of action available to employees if an employer refuses their request for flexible work.
The lack of legal protection has become particularly apparent since the pandemic transformed our attitudes towards working from home and working flexibly. Since 2020, many employees have continued to work from home or opt for a hybrid approach, with some days spent in the office and some days working from home.
In 2009, the Fair Work Act 2009 (Cth) established a right under section 65 to request flexible work arrangements. However, this is merely a right to make a request, not a right to challenge the result. To be eligible to make a request under the act the employee must have completed 12 months of continuous service with the employer.
Employers can reject a request if they have reasonable business grounds to do so. In deciding if there are reasonable business grounds, the employer will consider cost, capacity, practicality, efficiency, and productivity.
If an employer fails to provide a written response to the request within 21 days, an employee can take them to court to obtain one. However, doing so is costly. If the employer provides a written response rejecting the request, there is no legal right to challenge the result.