An April 2025 decision from the Full Bench of the Fair Work Commission demonstrates the importance of carefully preparing detailed written reasons for refusing a flexible work arrangement request.
In short, the Full Bench found in Naden v Catholic Schools Broken Bay Limited that the employer school's consideration of and written reasons for refusing an employee's flexible work request were insufficient (even though the employer's reasonable business grounds were set out in the refusal).
Elizabeth Naden, a teacher of Sacred Heart Primary School Pymble, was successful in appealing the decision of FWC Commissioner Matheson and had the Full Bench of the FWC affirm that she was entitled to work in accordance with her flexible working arrangement request.
The case concerned whether the employer school complied with clause 10 of the Catholic Schools Broken Bay Enterprise Agreement 2023, which provides that flexible work requests must be handled in accordance with the National Employment Standards (NES). The NES are set out in Part 2-2 of the Fair Work Act with sections 65 and 66 dealing specifically with requests for flexible work arrangements.
Following a period of parental leave in 2024, Ms Naden requested that she return to her role as Religious Education Coordinator (an executive, non-teaching position) on a part-time basis. The school refused the request to work part-time unless Ms Naden agreed to return only as a classroom teacher rather than in the executive position. The school relied on its business grounds for refusing Ms Naden's request.
First instance: business grounds considered the "substantive" requirement for refusal
At first instance, Commissioner Matheson considered whether Ms Naden was entitled to make the request. An employee is entitled to make a flexible work request if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being aged 55 or over or experiencing domestic violence. As the parent of a young child, Ms Naden was entitled to make the request.
The Commissioner also considered whether the school was entitled to refuse Ms Naden's request. An employer can only refuse a flexible work request if the following four requirements are met:
- the employer has held discussions with the employee and genuinely tried to reach agreement about the request;
- those discussions have not resulted in agreement;
- the employer has had regard to the consequences of the refusal for the employee; and
- the refusal is on reasonable business grounds.
The Fair Work Act provides that an employer must not refuse a request unless all four requirements are satisfied. Despite this, Commissioner Matheson expressed the view that requirement (4) is the key factor of "substance" and that a deficiency in the form and process of factors (1)-(3) does not automatically impugn an employer's refusal to grant a flexible work arrangement request.
The Commissioner identified deficiencies in the school's refusal. They included that the written response to the request came 82 days after the request was made (despite the Fair Work Act's time limit of 21 days). Also, the written refusal did not indicate that the employer had considered the consequences of the refusal for Ms Naden (factor (3) above), such as financial consequences which she raised.
However, Commissioner Matheson was satisfied that the school properly considered and articulated its business grounds for refusal. These grounds included the adverse impact on students, significant cost increase, adverse workload on other staff and reduced leadership at the school.
The Commissioner was satisfied that the requirement of substance was met and determined that the refusal complied with the Fair Work Act, despite the other deficiencies identified by the Commissioner.
Full Bench Decision: all four factors must be established
On appeal, the Full Bench (Vice President Asbury, Vice President Gibian and Deputy President Slevin) did not agree that having reasonable business grounds is the only requirement of substance. The Full Bench held that all four requirements must be met. If they are not, an employer cannot refuse the flexible work request.
Regarding requirement (3), the Full Bench held that the employer could not rely on the contention that Ms Naden only pointed to the financial impact of the refusal (and had not pointed to other consequences for her). The Full Bench held that an employer must consider all the consequences of refusal for the employee, regardless of how detailed the employee is in raising their concerns.
Further, the Full Bench held that the consequences of refusal must be discussed with the employee and included in the written reasons for refusal. The Full Bench held that the school's refusal was unlawful because the written reasons for refusal made no mention of the consequences for Ms Naden.
On the basis that all four requirements needed to refuse Ms Naden's request had not been met, the Full Bench ordered that her request should not have been refused. The Full Bench ordered that the school implement Ms Naden's request for Term 2 of the 2025 school year.
Key takeaways
- Reasonable business grounds are an important requirement for refusing a flexible work request. However, this is not the only requirement. Each of the four factors set out above are substantive requirements and all must be satisfied before an employer can refuse a request.
- Even if the employee does not fulsomely describe the impacts of refusal, an employer must still have proper regard to the consequences on the employee and include this in its reasons.
- The case is also a reminder of the importance of the requirement to provide a written response to a flexible work request within 21 days. Although this was not the central dispute, the Full Bench criticised the employer's "tardiness" in taking 82 days to respond to Ms Naden.
- Not only is a response required within 21 days, but it must also provide details of the reasons for refusal. This includes reference to the consequences of the refusal on the employee as well as how the employer has had regard to those matters. As the Full Bench stated in its decision, the importance of the written response cannot be overstated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
