Can You Refuse a Flexible Work Request from an Employee Over 55?

The answer is yes. Sometimes.

But getting to that answer requires a quick detour through the Fair Work Act, a 67-year-old who wants to write a novel, and a few process traps that catch employers out more often than they should.

Because here’s the thing.

Most employers assume flexible work disputes are about whether the employee’s request is reasonable.

Increasingly, they’re not.

They’re about whether the employer followed the right process before saying no.

That’s exactly what happened in a recent Fair Work Commission case involving a senior construction manager who wanted to compress his hours into four days a week so he could spend more time writing as he moved towards retirement.

The case is still ongoing, but it’s already become a useful reminder that both employees and employers can get flexible work requests wrong.

The employee wasn’t automatically entitled to win just because he was over 55.

And the employer wasn’t automatically entitled to refuse just because they had operational concerns.

Different mistakes.

Same destination.

The Fair Work Commission.

Can an employer refuse a flexible work request from an employee over 55?

Yes.

Being over 55 gives an employee the right to make a formal flexible work request. It doesn’t automatically mean the request has to be approved.

Employers can still refuse a request where there are reasonable business grounds for doing so, provided they follow the consultation and response requirements under the Fair Work Act.

What Is a Flexible Work Request?

A flexible work request is a formal written request from an employee to change their working arrangements. Under the Fair Work Act 2009, that can mean changes to hours, days, patterns of work, or location.

Anyone can ask informally.

But certain employees have a legal entitlement to make a formal request under the Act, which comes with specific obligations for employers that you cannot simply ignore.

The Fair Work Ombudsman provides further guidance on flexible working and employer obligations.

At HR Gurus, we’re seeing more employers caught out by the procedural requirements around flexible work requests than the actual business grounds themselves.

In many cases, the issue isn’t whether the request should have been approved. It’s whether the employer followed the correct process before saying no.

Who Is Entitled to Make One?

Employees who have worked for you for at least 12 months as a permanent employee, or as a regular and systematic casual with a reasonable expectation of ongoing work, can make a formal request if they fall into one of the following categories:

• Parent or carer of a school-age child, or a child with a disability
• Carer under the Carer Recognition Act
• Person with a disability
• 55 years old or older
• Experiencing, or supporting someone experiencing, family and domestic violence
• Pregnant

Does Being Over 55 Automatically Entitle Someone to Flexible Work?

No.

And this is usually where employers get caught out.

Being in an eligible category means an employee can make the request.

It does not mean the request is valid.

And it does not mean you have to grant it.

The Fair Work Commission has confirmed across multiple recent decisions that the reason for the request has to connect to the eligible category.

In legal terms, there needs to be a nexus.

In plain English?

Being 67 is not, by itself, a reason to work four days a week.

The request has to be because of the relevant circumstance, not merely alongside it.

In Tracey Smith v Costco Wholesale Australia Pty Ltd [2025] FWC 2691, Ms Smith was over 55 and asked for a compressed working week.

She could not establish any connection between the request and her age.

The Commission found the request invalid.

Costco was not required to deal with it under the formal flexible work framework at all.

What Happened in the Watpac Case?

In Paul Murray v Watpac Construction Pty Ltd [2026] FWC 1442, a 67-year-old services manager asked to compress his full-time hours into four days per week so he could spend more time writing and develop it into an income stream as he moved towards retirement.

Watpac rejected the request quickly, citing project deadlines on a major data centre build and difficulty redistributing his workload.

So far, so reasonable.

But this is where the dispute stopped being about flexible work and started being about process.

Rather than accepting the refusal, the employee argued that Watpac had not genuinely engaged with his request.

Watpac proposed a counterproposal:

• Four days on-site with 6am starts
• One day working from the Brisbane office with company-provided accommodation

The employee wasn’t convinced.

His view was that a five-day week dressed up differently was still a five-day week.

The matter escalated to the Fair Work Commission.

Watpac then attempted to block the dispute altogether, arguing that the employee’s creative pursuits were not age-related and that without a firm commitment to retire, he had no basis to pursue the matter.

Commissioner Chris Simpson disagreed.

The connection between the employee’s age, his transition towards retirement and his desire to establish another income stream was enough to make the request valid and allow the dispute to proceed.

The case is not yet resolved.

Watpac may still succeed on legitimate business grounds.

But the employer has already spent considerable time and resources getting to this point.

Whether Watpac ultimately wins or loses, it’s already spending time, money and attention dealing with a dispute that started with a request for one less day of work each week.

We’ve previously explored similar issues in Can Employers Refuse Flexible Work? The FWC Says Yes – Here’s What You Need to Know.

What Are Your Obligations Once a Request Is Valid?

Once a flexible work request clears the nexus test, employers must:

• Discuss the request with the employee and genuinely try to reach agreement
• Consider the consequences of refusal for the employee, not just the operational consequences for the business
• Respond in writing within 21 days

Most employers focus on whether they have a good reason to refuse.

The Commission is often just as interested in how they got there.

In Elizabeth Naden v Catholic Schools Broken Bay [2025] FWCFB 82, the employer had defensible operational reasons for refusing a request.

The trouble for the employer was that the Commission never really got to focus on those operational reasons.

The school took 82 days to respond, failed to meaningfully explore alternatives and did not properly address the consequences of refusal for the employee.

The Commission found the refusal invalid and granted the request anyway.

The business grounds became largely irrelevant.

Getting knocked out on a procedural technicality when you had a reasonable case is not a great outcome.

And it happens more often than many employers realise.

Can You Still Say No?

Yes.

But only on genuine business grounds, and they need to be specific.

Under section 65A(5) of the Fair Work Act, reasonable business grounds may include:

• Significant additional costs
• No practical way to accommodate the arrangement
• Negative impacts on productivity
• Negative impacts on customer service
• Operational requirements that cannot reasonably support the request

What generally doesn’t work?

Vague references to collaboration, culture or team dynamics without evidence.

The Commission will look at what the role actually requires, how the employee has performed historically and whether the claimed impacts are real rather than hypothetical.

Employers who rely on general statements tend to struggle.

As we discussed in Fair Work Draws the Line: Work From Home Requests Must Be Justified, both employees and employers need evidence to support their position.

What Should You Do When a Request Lands on Your Desk?

• Confirm the employee is eligible: 12 months’ service and they fall into an eligible category
• Check whether the reason actually connects to that category before treating it as valid
• If the request is valid, diarise the 21-day deadline immediately
• Meet with the employee, genuinely explore what might work and document the conversation
• If you are proposing an alternative, make sure it actually addresses what they asked for
• If you are refusing, make your business grounds specific, evidenced and addressed in writing
• Include in your response how you have considered the consequences of refusal for the employee

The 21-day clock starts from receipt of the request, not from when you finally get around to reading it.

Employers should also ensure their policies align with the latest changes to flexible work laws. For more information, see our guide to New Rules Around Flexible Work Arrangements.

Victorian employers should also keep an eye on emerging workplace flexibility obligations, including proposed work-from-home rights and reasonable adjustment requirements. We recently unpacked the changes in our blog Victorian WFH Rights: Reasonable Adjustments Employer Guide.

The interesting thing about these three cases is that none of them really turned on whether flexible work was a good idea.

One employee couldn’t explain why their request was connected to their age.

One employer had reasonable operational concerns but failed to follow the process.

And one dispute is now tied up in arguments about consultation, alternatives and retirement plans rather than whether a four-day week was actually workable.

That’s probably the part employers should pay attention to.

The law in this area isn’t especially complicated.

What has changed is the level of scrutiny.

Employees know their rights better than they used to.

The Fair Work Commission is seeing more disputes.

And employers are increasingly being asked to explain not just what decision they made, but how they made it.

The days of firing off a quick email saying “that won’t work for us” are largely gone.

If you’re going to refuse a request, you’ll need to show your workings.

And if you’re going to propose an alternative, it needs to be a genuine alternative, not the same arrangement with different packaging.

If you’ve received a flexible work request and you’re not quite sure where the line is, get advice before you respond.

Most flexible work disputes don’t start with bad intentions.

They start with someone assuming a quick email will do.

Unfortunately, that’s often the most expensive email in the whole process.

Need Help With a Flexible Work Request?

At HR Gurus, we help employers navigate flexible work requests, workplace compliance obligations and employee relations issues every day.

Whether you’re considering approving a request, proposing an alternative arrangement or preparing a refusal, getting the process right matters just as much as getting the answer right.

👉 Need advice? Speak with one of our HR experts today.