Flexible Work Requests: What Does “Because Of Age” Really Mean?

Employees aged 55 and over have a statutory right to request flexible working arrangements under the Fair Work Act. However, simply meeting the age requirement is not enough. There must also be a connection between the employee’s age and the flexibility being sought.

A recent Fair Work Commission decision has explored that connection in detail, finding that a 67-year-old employee’s desire to transition towards retirement and pursue personal creative projects was sufficient to establish the required link. The decision provides useful guidance for both employers and employees when navigating flexible work requests.

The Legal Framework

The Fair Work Act gives certain employees the right to request flexible working arrangements, including employees who are pregnant, have caring responsibilities, live with a disability, or are aged 55 years or older.

A request must be made in writing and explain both the changes sought and the reasons for those changes. Employers must respond within 21 days and may only refuse a request on reasonable business grounds.

Importantly, it is not enough for an employee to simply fall within an eligible category. There must be an objective connection between the relevant circumstance and the flexibility being requested.

The Bestseller Case

In Paul Murray v Watpac Construction Pty Ltd, a 67-year-old construction manager sought to compress his five-day working week into four days. His intention was to create more time for retirement planning and to pursue his ambition of writing novels that could provide income during retirement.

Watpac refused the request, arguing that the arrangement would negatively affect the project he managed and create difficulties in redistributing his duties. The employer also argued that the request was not truly connected to Mr Murray’s age, but rather to his desire to pursue a separate commercial venture.

The Commission disagreed.

While Commissioner Simpson accepted that simply being over 55 is not enough on its own, the Commission found there was a sufficient connection between Mr Murray’s age and the arrangement sought. His desire to transition towards retirement, improve work-life balance and create time for personal projects associated with that transition established the required nexus.

The decision confirms that the connection between age and a flexible work request can be broader than a direct reduction in hours or an immediate retirement plan.

A Practical Example

The Commission has also demonstrated a willingness to balance competing interests in family responsibility cases.

In Laura Kliffen v Reapit Employment Services Pty Ltd, a part time employee with two young children, including a child with special needs, sought to continue her flexibility to work from home post a transfer of business. The Commission ultimately ordered a compromise arrangement that largely accommodated the employee’s request while preserving regular workplace attendance.

Key Takeaways

For employers:

• Carefully assess whether the required connection exists between the employee’s circumstances and the flexibility sought.
• Avoid assuming a request falls outside the legislation simply because the employee’s motivations are broader than the obvious purpose of the provision.
• Ensure any refusal is genuinely supported by reasonable business grounds.

For employees:

• Clearly explain why the requested arrangement relates to your qualifying circumstance.
• Provide sufficient detail to demonstrate the connection between your circumstances and the flexibility sought.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.