FWC Full Bench Overturns Flexible Work Request Decision
A Full Bench of the Fair Work Commission (FWC) has reversed an FWC Commissioner’s February 2025 decision which upheld a primary school’s refusal to accommodate a request for flexible working arrangements. The decision of the Full Bench underlines the necessity of adhering to the Fair Work Act’s procedural requirements before refusing a request of this nature.
The employee, a teacher at the Sacred Heart Primary School Pymble, has been employed at the school since 2016. The teacher was promoted to an executive role as Religious Education Coordinator (REC) in 2023. The teacher took time off for parental leave in 2024 and was due to return to work in 2025. Before her return to work, the teacher requested to work part-time on account of her parental responsibilities and childcare arrangements. The school refused the request but offered return on reduced hours as a classroom teacher for the first half of the year – a role which attached lesser pay – with the option of stepping back into her REC role when she resumed full-time work later in the year.
A dispute about the refusal landed in the FWC and was determined by Commissioner Matheson. The Commissioner found in favour of the school in February 2025 (see our original news post here).
The teacher subsequently appealed the decision of the Commissioner, and the matter was determined by a Full Bench of the FWC. On 22 April 2025, the Full Bench quashed the original decision on the basis it was affected by error, and determined the school must immediately accommodate the flexible working arrangement as first proposed by the teacher.
Section 65A of the Fair Work Act 2009 deals with responding to requests for flexible working arrangements. Section 65A(3) says an employer may refuse a request “only if” certain things have occurred. Among them sits a requirement that the employer has had regard for the consequences of a refusal for the employee. In this case, the evidence did not establish the school had done so before it refused the request. The Full Bench concluded that the school was therefore not entitled to refuse the request, finding:
The respondent, in refusing the request, was required to have regard to the consequences of a refusal for [the teacher]. Section 65A(3) operated such that the respondent was not entitled to refuse the request unless that requirement was met. The evidence did not establish that respondent had regard to those consequences when it refused the request.
Further, s65A(2)(c) states that where the request for flexible working arrangements is refused, the written response must, subject to subsection (3), state that the employer refuses the request and include the matters required by subsection (6). Subsection (6)(a) requires that the written response must include the details of the reasons for the refusal. This requirement underpins the significance of the obligation placed on the employer by s 65A(3) including in subsection (c). Put simply, not only is a written response to a request required to be given within 21 days, but it is also subject to the requirement that where the request is refused, the employer must provide details of the reasons for 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 had regard to those matters. In the context of the significance of the right to request flexible working arrangements, the circumstances in which it can be exercised, the focus of the procedural requirements relating to genuinely trying to reach agreement, and the specification of the matters that must be taken into account, the importance of the written response required by s 65A(1) cannot be understated.
In this case the written response provides no reference to the consequences of the refusal for [the teacher] or any details of how regard was had to the consequences for [the teacher] in the respondent deciding to refuse the request. We find that no detail was given because the respondent did not have regard to the consequences for [the teacher]. Consequently, the requirement in s 65A(3)(c) to consider the consequences of the refusal was not met.