FWC ruling on flexible work requests under the Fair Work Act
The Fair Work Commission recently ruled on an employee’s request for a flexible working arrangement in accordance with section 65A of the Fair Work Act 2009 (FW Act). We look at the case and what it means for your business.
Case facts
Ms Elizabeth Naden (the applicant) commenced in the position of Religious Education Coordinator (REC) with Catholic Schools Briken Bay Limited as trustee for the Catholic Schools Broken Bay Trust (the respondent) in 2023. The REC role is a leadership role and consists of classroom teaching duties. On May 31, 2024, the applicant commenced parental leave, which was due to end January 30, 2025.
On September 21, 2024, the applicant submitted a flexible work arrangement request, seeking to return to work by reducing her workdays from five to three days a week for terms 1 and 2 of the 2025 school year.
The request to return on the reduced basis was made due to the applicant only securing childcare through family members for two days of the week. The applicant and respondent discussed the request throughout October and November, and on November 28, the applicant met virtually with one of the respondent’s HR managers to discuss return to work options after the respondent could not provide the requested flexible work arrangement for the REC role.
The options centered around the applicant moving to a classroom teacher position in a three-day-a-week capacity, with the ability to return to the full time REC position in term 3. A subsequent meeting was held on December 12 following complaints from the applicant that the respondent had not provided sufficient business grounds for declining her original request.
Prior to this meeting, the respondent listed a detailed response outlining the reasonable business grounds and reasons for refusal. The reasons provided included:
- accommodating the request is not in the best interest of students and would be detrimental to student achievement and wellbeing;
- it would impose a significant cost increase which is not reasonable;
- it would adversely impact the workload of other employees; and
- it would reduce the strength, availability and support of executive leadership for staff and students at the school.
The letter confirmed that the flexible working arrangement could not be accommodated, and if the applicant was not willing to accept an alternative arrangement, she would be expected to return to the REC role in a full-time capacity at the start of the 2025 school year. The applicant subsequently filed the dispute with the FWC on December 19, 2024.
The decision
In making the decision, Commissioner Matheson examined the requirements of section 65A of the FW Act and closely assessed the different grounds for refusal. The respondent submitted evidence that if the request was accommodated, it would require seven teachers compared to three to cover the REC role and classroom duties.
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Commissioner Matheson identified that this would have a considerable impact on the continuity of learning and teaching across subjects, and that students may struggle to adapt to the various teaching styles. The requirement to ensure more staff to cover the days the applicant would not be working meant it was found that the respondent would experience an increase in costs.
Whilst Commissioner Matheson did not accept the reason pertaining to the adverse impact on other staff members in full, the Commissioner agreed that the coordination of communication between three teachers for a single subject would be difficult and likely result in an increased workload.
Finally, due to the need for the REC role to be available across all school days, being part of the school's leadership team which could not be performed part-time and unable to be backfilled for the remaining two days a week for two terms, the Commissioner agreed that this would result in reduced leadership at the school and a significant impact on customer service.
Ultimately, it was agreed that the business had reasonable grounds for refusal, and the dispute was dismissed.
Key takeaways
When receiving a flexible work arrangement request, businesses must follow the requirements in responding to a request under section 65A of the FW Act for national system employers and the newly added section 39H in the Minimum Conditions of Employment Act 1993 (WA) for state system employers. In responding to a flexible working arrangement request, an employer needs to provide a written response within 21 days, outlining if the request has been accepted or refused. If the employer is refusing the request, prior to refusal, the employer must:
- discuss the request with the employee and genuinely try to reach an agreement with the employee to try to accommodate the request;
- if an agreement cannot be reached, the employer has considered the consequences of the refusal on the employee; and
- the refusal is based on reasonable business grounds.
In this case, the employer held discussions with the employee, put forward alternative options to the employee and provided in detail the reasonable business grounds for the refusal and the impact accepting the request would have on the business, resulting in the dispute being dismissed.
When dealing with flexible working arrangement requests, CCIWA strongly recommends that employers contact the Employee Relations Helpline on 08 9365 7660 or via [email protected] to seek tailored advice prior taking any action.
Find out how CCIWA’s employment lawyers can help you by contacting our legal team on 08 9365 7746, or via [email protected].
