Flexible work requests – lessons for the APS

Recent Australian Public Service (APS) census data shows a growing uptake of flexible work arrangements among APS employees. This upward trend has no doubt been supported by the APS-wide bargaining under the 2023 Public Sector Workplace Relations Policy, which resulted in all 103 APS enterprise agreements containing a common clause that provides employees with an unfettered right to request flexible working arrangement (APS Common Condition)from early 2024.

The entitlement for all APS employees to request flexible work arrangements under the APS Common Condition also sits alongside the rights for certain eligible employees to request similar arrangements under section 65(1) of the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) (FW Act).

Where disputes arise about a request, which cannot be resolved at the workplace level, APS employees may escalate the dispute to the Fair Work Commission (FWC) either:

• under the dispute resolution terms in their applicable APS enterprise agreement pursuant to section 739 of the FW Act, which allows the FWC to deal with the dispute; or
• if the request was made under the FW Act (i.e. on the basis they hold a prescribed circumstance under section 65), as a flexible work dispute under section 65B of the FW Act.

In this article, we outline the key requirements for APS employers responding to flexible work requests under the FW Act and APS Common Condition, and examine the key lessons from recent Fair Work Commission decisions in Naden and Westpac.

Requirements for dealing with a flexible work requests in the APS

The requirements for APS employers dealing with a flexible work request under the FW Act are largely replicated in the APS Common Condition.

Under both, an employer must comply with the following requirements before refusing a flexible work request:

• respond to the request in writing within 21 days
• consult the employee, this includes:
  • discussing the request with the employee
  • genuinely trying to reach an agreement about making changes to the employee’s working arrangements to accommodate their circumstances

1. considering the consequences of refusal for the employee
2. (under the Common Condition) consider connection to country and cultural obligations when responding to requests for changing work location for First Nations employees
3. refusing based on reasonable business grounds.

If an employer refuses a flexible work request, they must include in its written response:

• details of the reason for the refusal
• the employer’s particular business grounds for the refusal, and how those grounds apply to the request
• state either:
  • any changes in the employee’s working arrangements that would accommodate the employee’s circumstances outlined in the request and that the agency would be willing to make; or
  • that there are no such changes.
• state that the decision to refuse the request or to provide a written response within 21 days is subject to the dispute resolution procedures of the enterprise agreement, or if the employee is an eligible employee, the dispute resolution procedures outlined in sections 65B and 65C of the FW Act.

Guidance from recent FWC decisions

Two recent decisions of the FWC in Naden and Westpac provide important guidance on how employers should handle flexible work requests and the consequences of failing to meet the requirements.  

Case 1: Naden v Catholic Schools Broken Bay Ltd [2025] FWCFB 82 (Naden)

Ms Naden was employed by Catholic Schools Broken Bay Ltd (as trustee for Catholic Schools Broken Bay Trust) (Catholic Schools Broken Bay) as a teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School Pymble.

Following a period of parental leave, Ms Naden made a request to return to work flexibly on a part-time basis, working three days per week for term one and two, before returning to full-time work in term three.

During their consultation, Catholic Schools Broken Bay indicated a preference for Ms Naden not to perform the REC role on a part-time basis. They ultimately refused her flexible work request, unless she agreed to return in a teaching role only, without the REC responsibilities, until she returned to full-time hours.

The enterprise agreement that covered and applied to Ms Naden’s employment incorporated the FW Act provisions on flexible work requests (sections 65 to 65C), and provided a mechanism for disputes about those terms to be escalated to the FWC.

Ms Naden filed an application with the FWC to deal with a dispute under the enterprise agreement. The FWC arbitrated the dispute under the terms of the enterprise agreement, not under the powers of arbitration under section 65C of the FW Act.

How was the dispute determined at first instance?

At first instance, Commissioner Matheson found Catholic Schools Broken Bay had reasonable business ground to refuse the flexible work request, and made orders affirming the employer’s decision to refuse the request.

Commissioner Matheson distinguished the FW Act requirements for refusal of a flexible work request as either matters of ‘form’, ‘process’, or ‘substance’. In particular, the Commissioner characterised the requirements under section 65A(3), that the employer may only refuse the request if:

• it has discussed the request with the employee (section 65A(3)(a)(i))
• it has genuinely tried to reach agreement with the employee about making changes to working arrangements to accommodate the employee’s circumstances (section 65A(3)(a)(ii))
• it has failed to reach agreement (section 65(3)(b)
• it has considered the consequences of refusal for the employee (section 65A(3)(c)),

as matters of “process” and considered the only matter of substance in the proceedings was the requirement for an employer to have ‘reasonable business grounds’ for the refusal , and determined the dispute on that issue alone.

Catholic Schools Broken Bay gave evidence that the business grounds for the refusal included:

• an adverse impact on students
• significant cost increase to Catholic Schools Broken Bay
• adverse workload on other staff
• reduced leadership at the school.

Commissioner Matheson found Catholic Schools Broken Bay had established reasonable business grounds for the refusal, and upheld the refusal of the flexible work request.

Ms Naden appealed the decision.

Decision overturned on appeal

On appeal, the Full Bench of FWC found that the FWC at first instance did not adequately consider, or give weight to, the failure of Catholic Schools Broken Bay to comply with each of the requirements for refusing a flexible work request. In particular, the Full Bench found that the employer had failed to consider the consequences of refusing Ms Naden’s flexible work request before refusing it.

The employer’s evidence was found to be “general in nature, speculative, and did not address the question of whether the consequences for Ms Naden were considered at the time the decision to refuse the request was made.” The written response also failed to address the consequences or explain how they were taken into account.

The Full Bench decision highlights the importance of the written response when refusing a request. It also demonstrates that providing reasons for refusal requires not only stating that the consequences were considered, but explaining how they were considered.

The Full Bench also rejected Commissioner Matheson’s characterisation of the matters in section 65A(3), including the requirement to have regard to the consequences of refusal on the employee, as a mere matter of ‘process’. The Full Bench held that an employer is only entitled to refuse a request if they have satisfied each of the requirements for refusal of a flexible work request, and that the employer’s failure to consider each of those requirements meant that the employer was not in fact entitled to refuse the request, and that the employee was entitled to return to work in accordance with her flexible work request.

The Full Bench of the FWC overturned the first instance decision, and made orders approving Ms Naden’s flexible work request. This was notwithstanding the Commissioner’s finding at first instance that Catholic Schols Broken Bay had reasonable business grounds for refusal of the request.

Case 2: Chandler v Westpac [2025] FWC 3115

Ms Chandler commenced employment with Westpac in 2002, on the basis her role would be performed permanently at the Kogarah corporate office. During her employment, her circumstances changed as she moved further away from the office and had two children.

From 2017, Ms Chandler worked remotely and attended the Kogarah office one day per week, as was required at that time. In 2018, Ms Chandler changed teams, and worked remotely on a full-time basis prior to a period of parental leave, and continued to do so upon her return. In 2022, Ms Chandler agreed to attend the Kogarah office one day per month.

Westpac, pursuant to its Hybrid Working Model Policy, required employees to work from a corporate office at least two days per week. Ms Chandler made a request under section 65 of the FW Act to work remotely from home to care for her children.

Westpac refused the request. In discussions, Ms Chandler offered to attend her local Westpac branch two days per week rather than the Kogarah office. Westpac refused the request, and the dispute proceeded to the FWC.

It was agreed that Ms Chandler was eligible to make the request. The key issue was whether Westpac was entitled to refuse it.

Shortcomings in Westpac’s response

The FWC found that Westpac had not satisfied a number of the mandatory requirements under section 65A(3) when handling Ms Chandler’s request. Namely, it found that Westpac:

• failed to respond to Ms Chandler’s request within 21 days
• did not discuss the request with Ms Chandler before refusing the request
• did not genuinely try to reach agreement with Ms Chandler
• had not considered the consequences of refusal to Ms Chandler.

The FWC also found that Westpac had made no attempt to describe the business grounds for refusal or how those grounds applied to Ms Chandler’s request, nor set out any alternative arrangements that would be accommodated or set out the effect of sections 65B or 65C, as required under section 65A(6).

The key issues to be determined by the FWC were:

• the consequence of Westpac’s failure to comply with the requirements when responding to the request, and whether that ought to be fatal to its refusal (and Ms Chandler’s request should be granted by orders of the Commission) as it was in the Full Bench decision in Naden[HR6] 
• if not fatal to the refusal, whether Westpac had reasonable business grounds for the refusal.

Unlike the decision in Naden, the FWC found it was not compelled to make an order granting Ms Chandler’s flexible work request in circumstances where Westpac had failed to satisfy the statutory requirements of section 65A(3) of the FW Act before refusing Ms Chandler’s request. This was on the basis that the FWC was exercising statutory powers of arbitration under section 65C of the FW Act, which requires the exercise of discretion, including taking into account fairness between the parties. Whereas, in Naden, the FWC was exercising powers of arbitration under the dispute resolution terms of the enterprise agreement.

No reasonable business grounds

The FWC found that the following business grounds asserted by Westpac were not sufficient to support Westpac’s decision  to refuse the request:

• the proposed arrangements giving rise to loss of efficiency or productivity or having a negative impact on customer service
• the benefits of minimum periods of in-person attendance in the office, including fostering collaboration in teams, engagement with stakeholders and other people across the broader business
• other benefits of in person attendance, including assisting centralised operational processes, such as document processing and more effective team communication. Evidence was given of team ‘huddles’, training sessions, the use of ‘call boards’ at corporate offices to communicate key messages to staff (which were not accessible from home). [HR7] 

Westpac accepted it was not mandatory for Ms Chandler to be in the office to achieve a particular work function, rather the ability for teams to work effectively was greater if there was a certain level of office attendance and face-to-face interaction.

The FWC found that Westpac did not have reasonable business grounds for the refusal of Ms Chandler’s request because:

• the FWC was satisfied that Ms Chandler’s role could be performed completely remotely as she has been doing so for a number of years. Ms Chandler’s individual performance ratings were high, and a loss of productivity or efficiency had not materialised
• the evidence adduced of the benefits of in person attendance and face to face interaction was generalised, and to the extent that specific examples were provided, these were insufficient to establish reasonable business grounds
• Westpac made no effort to quantify any supposed losses or negative impact and to the extent such losses arise, the FWC was not persuaded that they rose to the level of ‘significant’ in this case.

On the basis that Westpac did not have reasonable business grounds to refuse Ms Chandler’s flexible work request, the FWC made orders granting Ms Chandler’s request.

Lessons for APS employers

• There are mandatory requirements that employers must satisfy before refusing a valid flexible work request. For APS employers, those pre-conditions arise under the relevant APS enterprise agreement and section 65A(3) of FW Act in respect of employees who are also eligible to make a request under the NES. The preconditions include the requirements for an employer to:
  • discuss the request with the employee
  • genuinely try to reach agreement about changes to arrangements to meet the employee’s circumstances
  • to have regard to the consequences of refusal of the request, including consideration of connection to country and cultural obligations for a First Nations employee.
• If an employer is considering refusing a request, it should seek to understand the consequences of a refusal in its discussions with an employee and before refusing the request. This should not be a speculative exercise. An employer should demonstrate in its written response the regard it has had for those consequences when communicating its decision.
• Written responses to flexible work requests are critical evidence to defend an employer’s decision to refuse. The FWC will look to the written response to determine whether the relevant pre-conditions have been met. Employers should ensure written responses evidence not only the ‘reasonable business grounds for refusal’, but also the other requirements that must exist for refusal, such as evidencing the consultation that has occurred and the regard which an employer has had for the consequences of the refusal for an employee.
• Employer compliance with the mandatory requirements for refusal of a flexible work request not only contributes to better decision making, but also mitigates the risk of the FWC granting a flexible work request in circumstances where an employer has not satisfied the pre-conditions for refusal (and other claims for alleged breaches of an enterprise agreement), in particular, if an employee makes an application to deal with a dispute under the dispute resolution terms of an enterprise agreement. In such a case, if the FWC makes a finding that an employer has not satisfied the pre-conditions for refusal, the FWC is likely to make orders granting the flexible work request, as it did in Naden. This may be the case even where an employer has reasonable business grounds for refusing the request.
• Employers should ensure that any purported business grounds for refusal of a flexible work request identify benefits and detriments that are specific to the relevant employee and the work they perform. Generalised arguments will not be sufficient. Employers ought to quantify the extent of any detriment to ensure that it reaches a level of significance that would support a finding that those business grounds are reasonable.
• It will be difficult for employers to establish that there are reasonable business grounds to refuse a flexible work request in circumstances where:
  • an employee could perform their work functions if the proposed arrangement was implemented. In the Westpac matter, the FWC considered the entirety of the employee’s role could be performed remotely
  • an employee has already demonstrated they can successfully implement the arrangement sought, and the detriments pleaded by an employer have not materialised. In the Westpac matter case, the employee had worked remotely for an extensive period of time without any evidence of the detriments pleaded by the employer having materialised.

If you have any questions regarding flexible work requests, please contact us here.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. 

 [HR1]Hi Tash, in our articles we avoid footnotes as our website doesn’t allow us to  format it nicely. I have instead linked to the census.

 [HR2]Thanks, sounds good

 [HR3]Hi Tash, is this the correct link?

 [HR4]Yes thanks

 [HR5]NAJ comment: I changed the format levels here

 [HR6]@Iva, we can link this back to the decision above using anchor targets

 [HR7]@Iva/Tash, can we clarify this part? Are these dot points the reasons given by Westpac for refusing the request, but they weren’t substantiated?

Published by:

Natasha Jones

Andrew Klein

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