FWC raises the bar for responding to flexible work requests

FWC raises the bar for responding to flexible work requests

The recent decision of the Full Bench of the Fair Work Commission in Elizabeth Maiden v Catholic Schools Broken Bay Limited as Trustees for the Catholic Schools Broken Bay Trust [2025] FWCFB 82 underlines the importance of employers meticulously complying with the requirements of section 65A of the Fair Work Act 2009 (Act) when responding to requests for flexible work arrangements.

Facts

The employee had been employed by the employer since 2016 as a teacher. She commenced a period of parental leave on 31 May 2024. At this time, she also held a Religious Educator (REC) role, which attracted additional remuneration. Before she was due to return to work at the start of 2025, the employee made a request for a flexible working arrangement, being to return to work part-time for terms 1 and 2 of 2025 and to full-time work for term 3. The request was made based upon her childcare responsibilities.

The employer refused the request to return part-time unless the employee agreed to return only as a classroom teacher and not also in her REC role, until she returned to full-time work. The stated basis for the refusal was that it would have an adverse impact on students, involve a significant cost increase and an adverse workload on other staff and reduce leadership at the school.

Statutory Regime

Section 65 of the Act provides an employee can request changes to work arrangements if, among other things, they are a parent or carer. The request must be made in writing and set out details of the change sought and the reasons for it.

Section 65A outlines a number of requirements for an employer in responding to a request for flexible working arrangements.

Importantly, in this case, section 65A(3) provides that a request can only be refused if the employer has held discussions with the employee and genuinely tried to reach agreement accommodating the circumstances which gave rise to the request, there has been no agreement, the employer has had regard to the consequences of the refusal on the employee and the refusal is on reasonable on business grounds.

Decision of Full Bench

The employer’s decision to deny the request was upheld at first instance. On appeal, the Full Bench found:

1. The employer was aware of the consequences on the employee of a refusal of her request;
2. Discussions held with the employee did not include any consideration of the consequences of refusing the arrangement;
3. Section 65A(3) placed a positive obligation on the employer to consider the consequences of a refusal of the request on the employee.
4. It is expected this consideration will be discussed with the employee and included in written reasons for refusal;
5. Under section 65A(3), the employer was not entitled to refuse the request unless the requirement to consider the consequence of a refusal was met.
6. The evidence did not establish the employer had regard to those consequences when refusing the request.

The Full Bench stated:

“Put simply, not only is a written response to a request required to be given within 21 days, but it is also subject to a requirement that where the request is refused, the employer must provide details of the reason for the refusal. We consider that this includes, not only that it has had regard to the consequences of the refusal for the employee but how it has to regard to those matters.”

The employer’s written response included no reference to the consequences of the refusal for the employee or any details on how regard was had to the consequences for her in declining the request. Accordingly, the requirement in section 65A(3)(c) to consider the consequences of the refusal was not met.

The Full Bench emphasised that each of the matters in section 65A(3) must be satisfied before an employer is entitled to refuse a request for flexible work arrangements. As such, the employer was not entitled to refuse the request, and it was required to implement a flexible working arrangement for terms 1 and 2 of 2025 in accordance with the original request.

Conclusion

Employers must methodically comply with section 65A when responding to requests for flexible working arrangements. This decision particularly highlights that the employer must have regard to the consequences of the refusal for the employee and explain in its reasons for refusing a request how it had regard to these matters.