(Cth) Include 'Reproductive Health Grounds' as a Circumstance for Flexible Work Arrangement Requests

Connor O’Halloran, Genevieve Lancaster & Inge Hogan
Jun 25
7 min read

Author: Connor O’Halloran, Genevieve Lancaster & Inge Hogan | Publish date: 25/6/2026

P: In Australia, employees with reproductive health conditions are not legally entitled to request flexible working arrangements.
S: The Minister for Employment and Workplace Relations should amend Section 65(1A) of the Fair Work Act 2009 (Cth) to add ‘the employee has reproductive health grounds’ as a circumstance in which an employee may request a flexible working arrangement.
E: Women’s Legal Services Australia: ‘Reproductive health should be added as an additional circumstance that supports a right to request a flexible work arrangement.’

Problem Identification:

Section 65(1A) of the Fair Work Act 2009 (Cth) states that an employee may request a flexible working arrangement in certain circumstances. However, aside from pregnancy, these circumstances do not extend to reproductive health.

According to Women’s Legal Services Australia, it is possible that ‘employers are refusing to allow women to engage in flexible work arrangements’ on the basis of reproductive grounds. Hvala and Hammarberg (2025), researchers at Melbourne Law School and Monash University, highlighted that reproductive health needs have contributed to instances of reduced work hours, early retirement and exhaustion of leave entitlements. Further, researchers at Western Sydney University have noted that reproductive health needs impose an economic burden on workers.

Context:

Reproductive health conditions include dysmenorrhea (painful periods), menorrhagia (heavy menstrual bleeding), polyendocrine metabolic ovarian syndrome (PMOS) and endometriosis. They also include the experiences of IVF, miscarriage and menopause.

Hvala noted that ‘workplace structures and supports are ill-equipped to support women's reproductive needs’. For instance, he highlighted that IVF is not necessarily a valid use of 'personal leave' (e.g. sick leave).

The Bankwest Curtin Economics Centre (BCEC) illustrated that the ‘value of lost productivity cost from reproductive health conditions is estimated at $21.3 billion per year.’

According to the Fair Work Ombudsman, flexible working arrangements include changes to work hours, patterns and locations (e.g. working from home).

Arguments:

In Hvala and Hammarberg’s (2025) research, which primarily focused on endometriosis, they found cases of participants electing to decrease work hours, leave work altogether and/or exhaust their leave entitlements to manage their reproductive healthcare needs. The Health Services Union (HSU) featured the story of El Jones, where they shared their experience with endometriosis: ‘if … flexibility was available to me, it would have helped me to effectively manage specialist appointments – which are only available during business hours … [and] have the flexibility to be more empowered to manage my health and my work the way I know best.’ Howe et al. (2024), researchers with Western Sydney University and Medical Research Institute of New Zealand, found that 33.6% of women with endometriosis have had to change jobs, with many passed over for promotion or have had to switch roles due to their symptoms.

The Australian Council of Trade Unions (ACTU) noted the negative impact of reproductive conditions and the lack of workplace flexibility on people’s earning capacity. The former Australian Institute of Superannuation Trustees (AIST) CEO, Eva Scheerlinck, highlighted that encountering debilitating menopausal symptoms could ‘[lead] to experienced middle-aged women leaving the workforce at a time when they are at the peak of their experience and earning potential’. The ACTU emphasised that this can be a ‘serious hit on their retirement savings.’ According to the AIST, if menopausal symptoms were the underlying cause for 10% of early retirements among women, the resulting annual loss in earnings and super would surpass $17 billion per year.

Advice/Solution Identification:

Women’s Legal Services Australia, the ACTU and academics Hvala and Hammarberg have called for reproductive health to be added as an additional circumstance. Hvala and Hammarberg (2025) stated that flexible working arrangements could enable people with reproductive health needs ‘to continue to be productive while managing their symptoms.’

Precedent:

There is currently no international precedent for reproductive health grounds as a circumstance for flexible working conditions to the best of the authors’ knowledge. However, there are 9 countries across the globe that offer either menopause leave, menstrual leave or a combination of the 2.

Public Support:

Broad Support

Issues related to menopause and perimenopause | Senate Community Affairs References Committee - Recommended amendments to be made to Section 65 of the Fair Work Act 2009 (Cth), to ensure women can access flexible working arrangements during menopause. However, they have not explicitly called for the inclusion of reproductive health grounds as a circumstance for requesting flexible working arrangements.

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

The Policymaker - “Reproductive health leave should be an entitlement for all workers”. This article outlined reproductive leave and flexibility, as well as the economic and well-being rationale for introducing these measures. By: Dr Michelle O’Shea, Nicola Street and Dani Howe | 5 February 2025 - Read the article here.
ACTU - “Workers campaigning for 10-days universal paid reproductive health leave”. This media release presented Australian unions’ ‘It’s For Every Body’ campaign that called for reproductive health leave and flexible working arrangements, as well as the difficulties and superannuation costs associated with reproductive health conditions. By: ACTU | 11 September 2024 - Read the media release here.
Women’s Legal Services Australia - “Inquiry into issues related to menopause and perimenopause”. This article outlined the rationale and called for amendments to the respective legislation for reproductive leave and flexible working arrangements for reproductive health. By: Women’s Legal Services Australia | 2024 - Read the article here.
INTHEBLACK - “Why supporting women’s health is just smart business”. This article highlighted the difficulties for women in the workplace due to their reproductive health conditions and made the case that better financial outcomes result from supporting women, including through flexible working arrangements. By: Megan Breen | 6 March 2026 - Read the article here.

Where to go to learn more:

(2026) Should Leave and Flexibility to Manage Reproductive Health be a Minimum Entitlement for Australian Employees Covered by the Fair Work Act? Complexities, Possibilities, and Unintended Consequences | O’Shea et al. - This paper analysed the utility of implementing reproductive health leave and flexibility. Further, it examined the potential consequences of the introduction of these policies. The authors recommended flexible working for those with reproductive conditions. View the paper here.
(2025) The impact of reproductive health needs on women’s employment: a qualitative insight into managing endometriosis and work | Hvala and Hammarberg - This qualitative study viewed the experiences of women with reproductive health needs in the workplace, often highlighting their difficulty with managing symptoms. The authors recommended that employees should be legally entitled to request a flexible working arrangement based on the circumstances of fertility or reproductive healthcare needs. View the research paper here.
(2024) Reproductive Health Leave Campaign | Health Services Union - The Reproductive Health Leave campaign described their goal to extend flexible working arrangements for all employees. Read the campaign here.
(2024) Issues related to menopause and perimenopause | Senate Community Affairs References Committee - This committee report viewed the experience of menopause and perimenopause, providing a chapter on menopause’s impact on work and the economic consequences. The report made recommendations that included changes to legislation that ensure women can access flexible working arrangements during menopause. View the report here.
(2023) Flexible Working Arrangements Best Practice Guide | Fair Work Ombudsman - This guide includes the best practice approach to flexible working arrangements, including the benefits, examples of flexible working arrangements, who is legally entitled to request flexibility and current grounds for refusal. View the guide here.
Fair Work Act 2009 (Cth) - Read the Act here.

Human Perspective:

Maya is 42 and works as a project coordinator in Sydney. Over the past 2 years, severe perimenopausal symptoms such as fatigue, migraines, and brain fog have made consistent work increasingly difficult. She began exhausting her sick leave, then her annual leave, and eventually took unpaid days off when she could not work. Despite providing a GP letter, her request for flexible working arrangements was declined. She knew that on some mornings she could not get to the office, but by the afternoon she was often capable of working productively, particularly if she could manage her symptoms at home. Without that flexibility, she continued working while unwell, making uncharacteristic mistakes and growing anxious about her performance. Colleagues noticed her withdrawal, and she stopped pursuing opportunities for advancement. Eventually, she reduced her hours to cope, significantly lowering her income and superannuation contributions, leaving her increasingly worried about her long-term financial security.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

Hvala, T. allowed for his statement on workplace structures and women’s reproductive health to be used in this brief, with permission shared on 7 May 2026.

Support

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Disclaimers

Please review all FORE disclaimers here.

Reference list:

Australian Council of Trade Unions. (2026, March 6). Unions push for new universal right to 10 days paid reproductive leave [Media Release]. https://www.actu.org.au/media-release/unions-push-for-new-universal-right-to-10-days-paid-reproductive-leave/

Australian Institute of Health and Welfare. (2025, September 16). Sexual and reproductive health: Glossary. https://www.aihw.gov.au/reports-data/health-conditions-disability-deaths/sexual-reproductive-health/glossary

Duncan, A., Hailemariam, A., Salazar, S. & Sotirakopoulos, P. (2025). The Costs and Benefits of implementing a Universal Reproductive Health Leave entitlement in Australia. Bankwest Curtin Economics Centre. https://bcec.edu.au/assets/2025/04/BCEC-Paid-Reproductive-Health-Leave-Report-20250408.pdf

Fair Work Act 2009 (Cth). https://www.legislation.gov.au/C2009A00028/latest/text

Fair Work Ombudsman. (2026, January 3). Flexible working arrangements. https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/

Financial Standard. (2021, July 22). AIST: Menopause costs women over $17bn a year. https://financialnewswire.com.au/financial-planning/aist-menopause-costs-women-over-17bn-a-year/

Reproductive Health Leave. (n.d.). El Jones. https://reproductivehealthleave.com.au/story/el-jones/

Howe, D., O’Shea, M., Duffy, S., Eathorne, A., & Armour, M. (2024). Endometriosis and its effects on workplace absenteeism and presenteeism: Disrupting inequality regimes (Preprint). Research Square. https://doi.org/10.21203/rs.3.rs-5363991/v1

Hvala, T. (2018). In vital need of reform: Providing certainty for working women undergoing IVF treatment. University of New South Wales Law Journal, 41(3), 901–938. https://doi.org/10.53637/uqzr3499

Hvala, T., & Hammarberg, K. (2025). The impact of reproductive health needs on women’s employment: A qualitative insight into managing endometriosis and work. BMC Women's Health, 25, Article 216. https://doi.org/10.1186/s12905-025-03726-y

O’Shea, M., Street, N., Howe, D. (2025, February 5). Reproductive health leave should be an entitlement for all workers. The Policy Maker. https://thepolicymaker.appi.org.au/reproductive-health-leave-should-be-an-entitlement-for-all-workers/

O'Shea, M., M.Varua, S.Duffy, A.Eathorne, and M.Armour. (2026). Menstrual Pain and the Economic Purse: Calculating and Understanding Menstrual Symptom Productivity Loss and the Australian Economy. Australian Journal of Social Issues, 1–14. https://doi.org/10.1002/ajs4.70092

Senate Community Affairs References Committee. (2024). Chapter 3: Impact on work and the economic consequences of menopause. In Issues related to menopause and perimenopause. Parliament of Australia. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Menopause/Report/Chapter_3_-_Impact_on_work_and_the_economic_consequences_of_menopause

Women’s Legal Services Australia. (2024, March 18). Inquiry into issues related to menopause and perimenopause. https://wlsa.org.au/issues-related-to-menopause-and-perimenopause/