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Flexible working arrangement disputes

Flexible working arrangement requests occur when an employee makes a request to change working arrangements. These changes may be to the:

  • hours of work (for example, changes to start and finish times)
  • pattern of working (for example, split shifts or job sharing)
  • work location (for example, working from home).

 

The request must:

  • be in writing
  • set out the change being asked for
  • explain the reasons for the requested change

 

Employers need to respond to a request:

  • in writing
  • within 21 days
  • by answering whether the request has been granted or refused, and providing reasons for any refusal
  • by providing information on any other changes the employer is willing to make or stating that there aren't any changes to be made

 

A flexible working arrangement request may be refused on reasonable business grounds such as: 

  • the requested arrangements are too costly

  • likely to result in a significant loss of efficiency or productivity

  • likely to have a significant negative impact on customer service

  • impracticable to accommodate because of other employees’ working arrangements. 

 

If the employer refuses the request, the employee and the employer must make reasonable attempts to resolve the dispute.

 

The dispute can be referred to the Commission if:

  • the employer failed to respond to the request within 21 days or refused the request
  • the employee and employer have made reasonable attempts to resolve the dispute

Critical information

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

 

Helpful quicklinks

Fact sheets

Applications and forms

Coverage and jurisdiction

Step-by-step guidance on the flexible working arrangement dispute process

Who can make an application?

You can make an application to refer a flexible working arrangement dispute to the Commission if:

  • you are an employee entitled to request flexible working arrangements under the Minimum Conditions of Employment Act 1993
  • you are a full-time or part-time employee who has worked with the same employer for at least 12 months or you are a casual employee who has been working with the same employer regularly and systematically for at least 12 months and have a reasonable expectation of this continuing
  • you requested flexible working arrangements because:
    • you are pregnant
    • you are the parent of, or have responsibility for the care of, a child who is school-age or younger (see section 6(1) of School Education Act 1999 for a definition of a child of compulsory school-age or younger)
    • you are a carer (as defined at section 5 of the Carers Recognition Act 2004)
    • you have a disability
    • you are aged 55 or older
    • you are experiencing family and domestic violence, or providing care or support to a member of your family or household who is experiencing family and domestic violence
  • you made your request on or after 31 January 2025
  • your employer has:
    • refused your request or
    • not responded to your request and it has been more than 21 days since you made the request
  • you have tried to resolve the dispute with your employer
  • you are seeking the Commission’s assistance to resolve the dispute. 

 

Employees in the public sector and employees employed by a local government authority can make an application to refer a flexible working arrangement dispute.

Employees in the private sector can only make an application if their employer is not a National System Employer as defined in the Fair Work Act 2009 (Cth). This generally means that you can make an application if your employer is unincorporated, or is not a trading corporation. For example, if your employer is a partnership, sole trader, or an association or organisation that does not substantially engage in trading or financial activities, you can make an application to refer a flexible working arrangement dispute.

It is important that, when you fill in your claim form, you be clear and precise when naming your employer. You should try to provide your employer’s correct legal name. For private sector, you should also provide the business name,  A.B.N. or A.C.N.

To help you identify your employer, check your: 

  • written employment contract or agreement;
  • letter of appointment;
  • group certificate;
  • pay slip;
  • job advertisement; or
  • award or industrial agreement. 

Who may not be eligible to make an application?

An employee or organisation cannot refer a flexible working arrangement dispute to the Commission if proceedings to enforce a minimum condition of employment relating to the flexible working arrangement request have been commenced in the Industrial Magistrates Court of Western Australia and the proceedings have not been discontinued or dismissed because they are not within the Court's jurisdiction.

How do I submit an application?

Who is my employer?

Your employer is not necessarily the director, owner or manager of the business. To identify your employer, one or more of the following may be helpful: 

  • group certificate;
  • pay slip;
  • letter of appointment;
  • job advertisement;
  • written employment contract or agreement; and 
  • performing a company or business name search.

You could also try to obtain company information from the Australian Securities and Investments Commission (ASIC) or the Department of Energy, Mines, Industry Regulation and Safety.  

What happens next?

After you have submitted your Form 23, the Commission’s Registry will:

  • check the form to make sure that it is complete and contains all the required information;
  • if the form is complete, send a copy of it to you for your records; and
  • serve a copy of it on the respondent(s).

We will provide a copy of this form and any attachments to your employer/principal and the other respondent/s named in this application. We may also provide this to an individual respondent’s employer/principal and any representative/s.  

If you do not want certain information to be provided to the other parties to this application, do not include the information yet. You can contact the Commission’s Registry on 9420 4444 to discuss this or if you have safety concerns about your contact details being shared. 

The Commission’s Registry may call or email you after you submit your application to give you further information on the process, and to confirm you wish to go ahead with it. 

If the Form 23 is incomplete, it may cause delays.

The respondents have 7 days after receiving your claim to file a written response to it. The Commission will provide you with a copy of any response that is filed.

After the time for filing a response has passed, the application will be allocated to a Commissioner and listed for a conciliation conference.

What is a conciliation conference?

A conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private, confidential and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be repeated outside the conciliation conference or used against a party later, except in some limited circumstances required by law. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim.

The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited.

Conciliation can occur over one or more conferences on one or more dates.

An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

For more information please see the Commission’s conciliation conference video by clicking here.

Possible outcomes of conciliation

  • Agreement may be reached during or after the conference. If the parties do reach an agreement, it is common to put the agreement in writing. Usually, the claim is then discontinued or withdrawn.
  • If agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

If the parties do not reach an agreement at the conciliation conference, then a hearing is held. A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings. 

Interlocutory or preliminary hearings 

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) hearings may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents or whether the Commission has jurisdiction to deal with the application;

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues. 

Directions hearings are similar to preliminary hearings and are designed to allow the parties and the Commission to work out:

  • what the issues are that the Commission will need to decide at a final hearing;
  • what steps can be taken to make sure those issues are decided in a fair and efficient way; and
  • when those steps will happen.

This can include setting out a timeline for when things should occur such as discovery, or when documents are to be filed with the Commission, such as outlines of submissions or witness statements. 

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute. This is where you or your representative can present evidence to support your application.

For more information, please read the Commission's hearing fact sheet by clicking here.

For information on evidence, please read the Commission's evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission's representation fact sheet by clicking here.

Possible outcomes of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

  • at the hearing, after all evidence and arguments are presented; or
  • after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.   

If your claim is unsuccessful, the Commission will usually dismiss the claim. 

If your claim is successful, the Commission may:

  • order the employer to respond to the request in writing or provide more detailed reasons for their response

  • order the employer to grant the flexible working arrangement request

  • order the employer to make a specific change in the employee’s working arrangements

  • make a declaration about the request (that the employer refused the request or that the grounds on which the employer refused the request are, or are not, reasonable business grounds). 

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.