Managing Flexible-Work Requests Consistently: A Fair Work and Gender Equality Imperative

Flexible work is now a board-level governance issue

Flexible-work decisions are no longer an informal manager discretion. For Australian employers, they sit at the intersection of employee relations, discrimination risk, workforce participation, Workplace Gender Equality Agency (WGEA) reporting and public reputation. Inconsistent decisions can disproportionately affect women, carers, employees with disability and older workers, undermining retention and progression while creating avoidable legal exposure.

The Fair Work Act 2009 (Cth), strengthened by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, gives eligible employees a clearer pathway to request flexible working arrangements and access dispute resolution where requests are mishandled. At the same time, the Workplace Gender Equality Act 2012 (Cth) and Workplace Gender Equality Amendment (Closing the Gender Pay Gap) Act 2023 have increased transparency and accountability for employers with 100 or more employees. Leadership teams should therefore treat flexibility as a measurable operating capability, not merely an employee benefit.

Key compliance and strategic insights

1. Apply the Fair Work Act process rigorously

Under section 65 of the Fair Work Act, eligible employees may request changes in working arrangements, including changes to hours, patterns or location of work. Eligible cohorts include parents and carers, people with disability, employees aged 55 or over, people experiencing family and domestic violence, and employees who are pregnant or have caring responsibilities in prescribed circumstances.

• Respond in writing within 21 days of receiving a request.
• Discuss the request with the employee and genuinely attempt to reach agreement before refusing it.
• Only refuse on reasonable business grounds, and explain those grounds in writing.
• Where possible, identify alternative arrangements that would accommodate the employee’s circumstances.
• Ensure the written response addresses the request, the business grounds relied upon and any agreed or proposed alternative.

The Fair Work Commission may deal with disputes about flexible-work requests, including where an employer has not responded appropriately or parties cannot resolve the matter. A generic statement that a role “requires office presence” is unlikely to be a sound governance response without role-specific evidence, genuine consultation and consideration of workable alternatives.

2. Build consistency without removing managerial judgement

Consistency does not mean every request receives the same outcome. It means comparable requests are assessed through the same documented framework, against clear evidence and with decisions capable of being explained to the employee, the Fair Work Commission, WGEA and the board.

• Create a central policy defining request channels, decision timeframes, approval authorities and escalation points.
• Use a standard assessment template covering inherent role requirements, service impacts, team coverage, client needs, technology, safety and potential mitigations.
• Require managers to distinguish genuine operational constraints from preference, habit or unsupported assumptions about productivity.
• Establish HR or employee-relations review for refusals, particularly for higher-risk cohorts or inconsistent outcomes across business units.
• Record reasons, alternatives considered, trial periods and review dates in a secure central register.

Regular calibration between HR, legal, operational leaders and people managers is critical. It identifies where one division is approving hybrid work while another routinely refuses similar roles, and enables corrective action before patterns become entrenched.

3. Connect flexibility decisions to WGEA gender equality outcomes

WGEA reporting requires relevant employers to report against gender equality indicators, including workplace flexibility, employee consultation and gender composition. The 2023 amendments expanded WGEA’s public transparency role, including publication of employer gender pay gap information and enhanced reporting expectations. Flexible-work outcomes should therefore be reviewed alongside recruitment, promotion, turnover, parental leave uptake, remuneration and gender pay gap data.

• Analyse approval, refusal and withdrawal rates by gender, caregiving status, level, business unit, employment type and location.
• Test whether flexible workers experience slower promotion, lower performance ratings, reduced access to high-value work or disproportionate exits.
• Set accountable executive metrics for flexibility uptake, manager capability and equitable career outcomes.
• Incorporate findings into WGEA reporting governance, gender equality strategies and board people-risk dashboards.

Flexibility can support women’s workforce participation and leadership progression, but only if employees using it are not penalised through reduced visibility or narrower career opportunities. The strategic objective is flexibility that is normalised for all genders, including men with caring responsibilities, rather than a concession associated with women’s roles.

4. Manage transparency and reputational risk proactively

WGEA may publicly name employers that fail to comply with reporting obligations. Non-compliance can also affect eligibility to compete for certain Commonwealth procurement opportunities. National media coverage of WGEA reporting and non-compliance has made gender equality performance a visible issue for employees, investors, customers and procurement partners.

International experience reinforces the direction of travel. UK gender pay gap reporting is subject to enforcement by the Equality and Human Rights Commission, while the EU Pay Transparency Directive requires Member States to implement effective, proportionate and dissuasive penalties, including fines, for relevant breaches. Australian employers with international operations should expect stakeholders to compare local practice with these increasingly transparent standards.

Practical checklist for HR and board leadership

• Review flexible-work policies against sections 65 and 65A of the Fair Work Act and current Fair Work Commission guidance.
• Train managers on reasonable business grounds, consultation, written responses and unconscious bias.
• Implement a 21-day workflow with HR oversight and auditable records.
• Conduct quarterly equity analysis of request outcomes and career impacts.
• Report material trends, refusals and risk indicators to the executive team and board.
• Align flexibility data with WGEA reporting, gender action plans and remuneration governance.
• Audit public statements, procurement declarations and internal practices for consistency.

Conclusion and next steps

Employers that manage flexible-work requests fairly, promptly and consistently will be better placed to meet Fair Work obligations, strengthen WGEA readiness and retain critical talent. The most effective approach combines compliant process design with data-led oversight and visible executive accountability. For a practical route to seamless compliance and strategic execution, Diversity Australia’s WGEA Readiness Tool and Consulting Services can help organisations assess gaps, build governance capability and translate gender equality objectives into sustainable workplace practice.