Can I request different hours for caring responsibilities, and when must the employer respond?

Eligibility for a statutory flexible-work request

Under the Fair Work Act's National Employment Standards, an employee may request a change to working arrangements if they have at least 12 months' continuous service with the same employer and fall into at least one specified category. These categories include being the parent or carer of a school-aged or younger child, being a carer under the Carer Recognition Act 2010, having a disability, being aged 55 or older, being pregnant, or experiencing family and domestic violence. The right also extends to employees who provide care or support to an immediate family or household member experiencing such violence.

Casual employees face additional hurdles. A casual must meet one of the listed circumstances, have worked for the same employer on a regular and systematic basis for at least 12 months, and have a reasonable expectation of continuing work on that basis. Without meeting these conditions, the 21-day response duty under this NES route may not apply; another law, agreement or policy may need separate checking, although an informal discussion may still be possible.

How to make a valid written request

A request must be in writing and must clearly state the specific change sought, the reason for the change, and how that reason connects to the employee's circumstances. For example, if the change is to start later to drop a child at school, the request should say that. The request should also indicate whether the change is temporary or ongoing, and propose a start date. Keeping a copy of the original request is essential, as it establishes the date from which the 21-day response period runs.

A vague request such as 'I need more flexibility' is unlikely to give the employer enough information to assess the operational impact. The more specific the request, the easier it is for the employer to respond meaningfully and for a dispute resolution body to understand what was actually sought.

The employer's written response within 21 days

Once a valid request is received, the employer must respond in writing within 21 days. The response must state whether the request is approved or refused. If the employer and employee agree on different arrangements from those originally requested, the employer must confirm those agreed changes in writing within the same 21-day period.

If the employer refuses the request, the refusal is only lawful if it is based on reasonable business grounds and the employer has first discussed the request with the employee, genuinely tried to reach agreement on alternative arrangements, and considered the consequences of refusing. The written refusal must explain the reasons, including how the grounds apply to the specific request, and must list any alternative changes the employer is willing to make, or state that none are offered. It must also inform the employee about the Fair Work Commission's dispute resolution role.

Reasonable business grounds for refusal

The law does not allow an employer to refuse simply because the request is inconvenient. Reasonable business grounds may include excessive cost, inability to change other employees' arrangements, impracticality of hiring new staff, likely significant loss of efficiency or productivity, or a significant negative impact on customer service. The employer's size and the nature of its business can be taken into account.

A short refusal that merely says 'business needs' is not a complete explanation. The employee should ask for the specific grounds and how they apply to the requested change. If the employer proposes an alternative arrangement, the employee should compare whether that alternative actually addresses the underlying care or other circumstance, and for how long.

What to do if the employer does not respond or refuses

If the employer fails to respond within 21 days, or refuses the request without following the required process, the employee can lodge a dispute with the Fair Work Commission. The Commission will usually attempt conciliation or mediation first, and if that fails, it can arbitrate and make binding orders.

Before lodging a dispute, the employee should gather the written request, the employer's response (if any), and any notes of discussions about alternatives. The employee should also be prepared to explain how the requested change addresses their circumstances and why the employer's stated grounds are not reasonable in their view. The Commission does not automatically approve every care-related request; it assesses each case on its facts.

Hypothetical illustration: a care request and refusal without discussion

Consider a part-time employee with 18 months' service who is a carer for a parent. She requests a change from five shorter days to three longer days, explaining that this will reduce travel time and allow her to attend medical appointments. The employer responds within 21 days, refusing on the ground that the change would reduce coverage on two weekdays. The employer does not discuss alternatives.

The employee should ask: Did the employer genuinely discuss alternatives, such as a trial period or a different pattern? Does the refusal explain how the coverage concern applies to this specific request? If the employer had proposed a different arrangement, the employee would need to assess whether it still meets the care needs. This example illustrates the kind of comparison a dispute resolution body would make; it does not predict the outcome.

Next steps if the issue remains unresolved

If the employer's response does not satisfy the legal requirements, the employee should first ask for a more detailed explanation in writing. If the employer still does not provide one, or if the employee believes the refusal is not based on reasonable business grounds, the next step is to consider lodging a dispute with the Fair Work Commission. The Commission's website provides information on how to apply.

Before doing so, the employee should prepare a clear summary of the request, the employer's response, and any discussions. If the employee is unsure whether they meet the eligibility criteria, they should check their service dates and the nature of their employment (full-time, part-time, or casual). If the employee is covered by a state or territory law that provides a better entitlement, ask how that law and the NES interact. For complex cases, seeking advice from a workplace relations professional may be helpful, bringing the written request and response to the appointment.

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