s.65B - Application for a dispute about requests for flexible work arrangements

Application to deal with a dispute about the right to request for flexible working arrangements - s 587(1)(c) no reasonable prospect of success - want of prosecution - application dismissed.

[1] On 2 October 2025, Mr Brodie Stephen Crole made an application for a dispute about requests for flexible work arrangements to the Fair Work Commission under s 65B of the Fair Work Act 2009 (Cth) (Act).

[2] For the reasons that follow, Mr Crole's application is dismissed.

[3] On 7 October 2025, the Respondent contacted my Chambers by email stating that Mr Crole was no longer an employee of the Respondent.

[4] On 10 October 2025, my Chambers emailed Mr Crole noting the Respondent's update on his employment status, and requested that he provide an update on his position on his application 5pm Friday 17 October 2025. No response was received.

[5] On 22 October 2025, my Chambers emailed Mr Crole directing him to advise by 5pm Friday 24 October 2025 whether he:

a) seeks to progress the application to a formal arbitration in the Commission (in which case, a Case Management Conference will be listed to issue Directions for the conduct of the matter and a date for a hearing, and will address the Respondent's jurisdictional objection that he is no longer an employee); or

b) whether he no longer requires the assistance of the Commission in this matter; or

1. whether he would like to contact my Chambers by telephone to discuss the matter further.

[6] On 18 November 2025, my Chambers sent another email to Mr Crole noting no response had been received to the 22 October 2025 direction. Mr Crole was advised that in the absence of any responsive views from him, my preliminary view was that the application should be dismissed for want of prosecution. Mr Crole was provided with another opportunity to advise of how he wished to progress with his application. Mr Crole was required to provide a response by no later than 5pm Thursday 20 November 2025. No response was received.

[7] My Chambers made repeated attempts to call Mr Crole without success on:

[8] My Chambers also sent a text message to Mr Crole at 10.51am on Friday 31 October 2025 seeking contact with my Chambers. No response was received.

[9] To date Mr Crole has not contacted my Chambers to progress his application.

[10] Section 587 of the Act relevantly provides as follows

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(a) on its own initiative; or

(b) on application."

[11] Section 587 of the Act allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings if the application has no reasonable prospects of success. From the information before me, it appears as though Mr Crole is no longer an employee, and is therefore not covered by section 65B of the Act, and his application is no longer applicable to his now ceased employment with the Respondent.

[12] Section 587 of the Act also allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings for want of prosecution. If an application's conduct or omissions show they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]). Mr Crole has failed to engage with these proceedings despite multiple, reasonable opportunities to do so.

[13] Having regard to these matters, and the conclusions reached, I am empowered to exercise the discretion afforded pursuant to s 587 of the Act to dismiss Mr Crole's application for a dispute about requests for flexible work arrangements. While such discretion is to be exercised with caution, I am satisfied it should be exercised in the current circumstances: I make the following order:

1. The application under s 65B of the Fair Work Act 2009 (Cth) made by Mr Brodie Stephen Crole on 10 October 2025 is dismissed.

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