Fair Work Commission|2025-07-18

Catherine Louise v Metcash Trading Ltd [2025] FWC 2090 (18 July 2025)

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

[1] Catherine Louise is employed by Metcash Trading Limited. Her employment commenced on 29 July 2020. Throughout her employment, Ms Louise has worked on a full-time basis remotely from her home.

[2] In late 2024, Metcash issued a direction to the effect that certain of its employees work from a Metcash office for a minimum of three days a week ("Office Direction"). The Office Direction applied to Ms Louise.

[3] Ms Louise requested an exemption from the Office Direction. The premise of the request was that she has a teenage daughter with cystic fibrosis. She wished to minimise the risks of being exposed to pathogens in the workplace and bringing those into her household, endangering her daughter.

[4] Metcash refused Ms Louise's request. However, it offered to modify the Office Direction so as only to require Ms Louise to attend the office two days a week. This was subject to the caveat that she attend at other times as directed. Ms Louise did not accept that proposal.

[5] Ms Louise applied to the Commission to deal with the dispute, under section 65B of the Fair Work Act 2009.[1] She seeks an order that would have the effect of maintaining indefinitely her current full-time working from home arrangement.

[7] I have determined to make an order requiring Metcash to grant Ms Louise's request. My reasons follow.

[8] At the time Ms Louise commenced employment, Metcash's employees were working under a direction from the company to work from home. This was in response to the COVID-19 pandemic. Consequently, when Ms Louise started working for Metcash, she did so from home. She has continued to do so.

[9] At some stage towards the end of 2024, Metcash issued the Office Direction. It is not in evidence, although its existence and effect is not in dispute. It required that "all corporate employees...return to their relevant office location for a minimum of three days per week".[2] The Office Direction applied to Ms Louise.

[10] Ms Louise made a request of Metcash that she be exempted from the Office Direction. That request is not in evidence. However, in its written submissions, Metcash stated that the request was made on 15 October 2024 and that it was in writing. Metcash further stated that the request included the following grounds on which Ms Louise sought the exemption:[3]

(1) Ms Louise's daughter suffers from cystic fibrosis; and

(a) returning to an office environment due to a perceived risk of becoming infected with a respiratory illness and subsequently infecting her daughter;

(b) hot-desking; and

(c) coming into contact with contaminated surfaces.

[11] Metcash submitted that on 29 October 2024, its representatives met with Ms Louise to discuss her request for an exemption from the Office Direction. There is no record of that meeting in the evidence.

[12] However, it would appear that a meeting took place on 4 November 2024 between Ms Louise and two of Metcash's managers, John Barakat[4] and Mike McLoughlin[5]. That meeting is referred to in an email from Mr Barakat to Ms Louise sent that day. The email stated:[6]

Thanks for meeting with Mike and I today to discuss your exemption request from returning to the office.

You have proposed to work from home full time based on your concerns relating to hot desking and your daughters' [sic] health. We have considered your request and balanced this with the needs of your team and the wider business and we unfortunately are unable to accommodate your exemption. The ALM Leadership Group and GLT are in alignment that in person connection, team collaboration and making opportunities for regular knowledge sharing are vital to help us move forward as a business and we need you in the office to participate. While we understand that your role has largely been performed at home during the COVID period and beyond, this was not intended as an ongoing permanent change.

Safety is at the forefront of everything we do and we acknowledge the concerns that you have raised in relation to keeping your family safe. We already have some existing measures in place for keeping our people safe and well and reduce the spread of germs including sanitising wipes located in central places on the floor and access to personal leave for times when our team are unable to attend work on account of being unfit. In addition, if you are concerned, you are welcome to wear a mask on the days that you attend the office and we encourage you to wash and sanitise your hands regularly throughout the day.

To further help support you, we have agreed that we can offer you a 2 day from the office/3 day from home arrangement if you would like to take this up, however our expectation is that you will be flexible in attending the office for additional days for events, business critical meetings and essential in person collaboration as directed by your leader.

As you are aware, the 3 day per week return to office provisions came into effect on 14 October 2024 so could you please let us know your intentions to return to the office by Friday 8 November 2024."

[13] On 8 November 2024, Ms Louise sent an email to Mr Barakat in response. She stated:

Thank you for following up, and I appreciate the time taken by both you and Mike to discuss my exemption request.

I also want to acknowledge the efforts of the ALM Leadership Group, GLT and People and Culture teams in reviewing my situation.

During our conversation, we discussed that my exemption request was submitted after the initial deadline.

This delay was due to awaiting information from my daughter's specialist, who was unavailable at the time. I am grateful that my request was still reviewed despite the timing.

Additionally, as we discussed, I understand that you are familiar with cystic fibrosis and the health vulnerabilities that make respiratory illnesses a significant concern for my family.

Given these unique circumstances, I wanted to confirm if there may be any further avenues within the company for additional review or reconsideration of my request?

Thank you once again for the support and consideration given by all involved. I look forward to any further guidance you can provide."

[14] Mr Barakat responded to Ms Louise on 11 November 2024. In his email, Mr Barakat stated:

In receiving your initial exemption request, we consulted with the relevant GLT and P&C representatives who also reviewed your request prior to reaching our decision. These parties would ordinarily form a part of any additional review/reconsideration process.

Having regard to this, it remains our position that we are unable to accommodate your exemption of a full time working from home arrangement. To help support you, we have previously offered a 2 day from the office/3 day from home arrangement if you would like to take this up, however our expectation is that you will be flexible in attending the office for additional days for events, business critical meetings and essential in person collaboration as directed by your leader.

Could you please let us know your intentions in relation to your return to the office by close of business on Wednesday 13 November 2024."

[15] On 13 November 2024, Ms Louise sent an email to Mr Barakat in response. She stated:

Thank you for your response and confirmation that I have exhausted the review/reconsideration process.

Unfortunately due to importance [sic] of infection minimisation and the impact this is having on my mental health and productivity I feel I am left with no further alternative than to lodge a Form F10C to apply to resolve a dispute about flexible working arrangements with the Fair work Commission.

During this time, I feel it best to continue with my current remote working arrangement until the hearing, as I am concerned about the potential exposure during this interim period.

This will also ensure minimal disruption to my work while we await the commissioner's guidance."

[16] Ms Louise commenced these proceedings on 28 November 2024.

[17] It is common ground that Metcash has maintained its position that Ms Louise need only work from the office two days a week, and otherwise as directed, as outlined in Mr Barakat's emails of 4 and 11 November 2024. However, she has continued to work entirely from home pending the outcome of these proceedings.

[18] Section 65 provides that, in prescribed circumstances, an employee may request of their employer that there be a change in their working arrangements relating to those circumstances. Relevantly for present purposes, the prescribed circumstances include when:

(1) the employee is the parent, or has the responsibility for the care, of a child who is of school age or younger: section 65(1A)(a); or

(2) the employee is a carer (within the meaning of the Carer Recognition Act 2010): section 65(1A)(b).

[19] Section 65A(1) requires the employer to respond to a request for flexible working arrangements within 21 days. If the employer refuses the request, its response must set out the reasons for the refusal, including any particular business grounds for the refusal and how they apply to the request: section 65A(6).

[20] Under section 65A(3), the employer may refuse the request only if:

(1) it has discussed the request with the employee and genuinely tried to reach agreement with them on changes to the employee's working arrangements to accommodate the relevant circumstances;

(2) the employer and the employee have not reached such an agreement;

(3) the employer has had regard to the consequences of the refusal for the employee; and

(4) the refusal is on reasonable business grounds.

[21] Section 65A(5) provides the following non-exhaustive list of what will constitute reasonable business grounds for refusing a request:

(1) the new working arrangements requested by the employee would be too costly for the employer;

(2) there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

(3) it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

(4) the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; or

(5) the new working arrangements requested would be likely to have a significant negative impact on customer service.

[22] When parties are in dispute over a request for flexible work arrangements, they may be able to refer the matter to the Commission. There are two broad prerequisites to the Commission being able to deal with such a dispute.
[23] The first prerequisite is that the matter must amount to a dispute within the meaning of section 65B(1). Relevantly for present purposes, such a dispute will arise where an employee makes a request of their employer under section 65(1) for a change in working arrangements and the employer has refused the request. This in turn imports a requirement that the employee's request must have been validly made under section 65(1).[7]
[24] There are five preconditions to a request under section 65(1) being validly made:[8]

(1) At least one of the circumstances in section 65(1A) must apply to the employee. The relevant circumstances must, as a matter of fact, exist (rather than be anticipated or the subject of anticipatory discussion) in respect of the employee at the time the request is made.

(2) The employee's desire for changed working arrangements must be "because of" the relevant circumstances (section 65(1)(b)) and relate to them. That is, there must be a nexus between the request and the relevant circumstances.

(3) Third, the employee must have completed a minimum period of service immediately before making the request: section 65(2). In this case, that period is 12 months of continuous service.

(4) The request must have been made in writing: section 65(3)(a).

(5) The request must set out the details of the change sought and the reasons for the change: section 65(3)(b). The requirement to set out the "reasons for the change" is to be understood as connected with the requirements for a valid request in section 65(1). That is, the reasons need to identify the relevant circumstance in section 65(1A) and explain how the proposed changed working arrangements relate to that circumstance.

[25] The second prerequisite is that the parties to the dispute must first attempt to resolve it at the workplace level, by discussions between them: section 65B(2). A party may only refer the dispute to the Commission "if discussions at the workplace level do not resolve the dispute": section 65B(3).
[26] When a dispute is referred to it, the Commission must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances: section 65B(4)(a).

[27] If the dispute proceeds to arbitration, the orders that it may make are set out in section 65C(1). The effect of Ms Louise's case is to seek an order under section 65C(1)(f) that Metcash grant her request to be exempted from the Direction. It is a matter within my discretion as to whether such an order ought to be made.

[28] However, I am only able to make an order if I am satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order: section 65C(3). In making any order, I must take into account fairness between the parties: section 65C(2).

Other grounds relied on, and remedies sought, by Ms Louise

[29] Ms Louise placed some reliance on the Disability Discrimination Act 1992, submitting in particular that under that Act "employers must provide reasonable adjustments for employees with caregiving responsibilities unless they can prove that doing so would impose an unjustifiable hardship [on them]".[9] I do not intend to traverse Ms Louise's case in that regard. The Commission has no jurisdiction under the Disability Discrimination Act. Ms Louise's case comes to be determined under Part 2-2, Division 4 of the Fair Work Act only.

[30] Similarly, in her written and oral submissions Ms Louise sought a range of outcomes beyond an order that her request be granted. These included orders for compensation or penalties, and orders that Metcash acknowledge that its handling of the matter had caused Ms Louise to suffer stress and other detriment, conduct mandatory training for its employees and conduct a review of its policies relevant to flexible work arrangements. It is not necessary to explore this aspect of her case. In making any orders, I am constrained by section 65C(1). I have no power to grant the additional relief that Ms Louise sought.

[31] As I have stated, Ms Louise's request is not in evidence. However, in its submissions Metcash stated that the request was made on 15 October 2024, was in writing and set out the details of the change Ms Louise sought and the reasons for the change. I regard those facts as being accepted. As at 15 October 2024, Ms Louse had completed more than 12 months service with Metcash.
[32] However, two questions arise from Metcash's submissions. First, did at least one of the circumstances in section 65(1A) apply to her? Second, and if so, was there a nexus between the request and the relevant circumstance or circumstances? If the answer to either of these questions is no, Ms Louise's request was not validly made and the matter will not amount to a dispute within the meaning of section 65B(1). The Commission would not be able to deal with the matter.[10]
[33] But that is not the situation. For the reasons which follow, the answer to both questions is yes.

[34] Ms Louise claimed that she made the request as both a parent and a carer, being circumstances referred to in section 65(1A)(a) and (b) respectively. It is not in dispute that Ms Louise is the parent of a child who is of school age. That is sufficient to dispose of the first question.
[35] For reasons that will become clear, it is not necessary to consider whether Ms Louise is also a carer within the meaning of section 65(1A)(b), or whether her request had the requisite nexus with that circumstance.

Is there a nexus between Ms Louise being a parent and her request?

[36] The second question is more material in this case. At the hearing, Metcash submitted that the question as to whether there was a nexus between Ms Louise's request and her circumstances as a parent, which Metcash referred to as the "issue of causation", was "[t]he element...which is most pertinent to this matter".[11]
[37] On this point, Ms Louise's case may be summarised in this way:

(1) She has a teenage daughter with cystic fibrosis. As a result, care must be taken to minimise infection risks within the household.

(2) Office workplaces are high-risk environments due to shared surfaces, communal facilities and airborne pathogens. Working from home is a proven strategy for reducing infection risk.

(3) Her request for an exemption from the Office Direction is due to these factors. It follows that her request is because of her status as a parent (and as a carer).

(4) There are "compelling medical reasons" for her request to be accommodated.[12] Her request "is based on medical necessity".[13]

[38] Metcash does not dispute that Ms Louise's daughter suffers from cystic fibrosis or that infection minimisation may result in positive health outcomes for her daughter. However, it contended that Ms Louise had failed to establish the necessary nexus between her request and a circumstance in section 65(1A). Its submissions in this regard can be distilled into two broad propositions:

(1) Ms Louise has not demonstrated that she is required to provide care for her daughter, either in a manner that precludes her from complying with the Office Direction, or generally.

(2) The reasons that Ms Louise has put forward for her request otherwise lack substance or credibility, such that they do not provide a proper basis for the request.

Whether the request must be for the purpose of a parent providing care to their child

[39] Metcash contended that it was necessary for Ms Louise to demonstrate that the request would enable her to provide care for her daughter. Its arguments in that regard can be reduced to several propositions:
- (1) Section 65(1A)(a) is only enlivened when the parent is required to provide care for a child of school age or younger. That is, "being a parent, in and of itself, is not enough to enliven this particular subsection".[14]

(2) Care entails active, physical involvement. It has an in-person quality.

(3) "Refusing to attend an environment to reduce the risk of being infected with a pathogen is not providing care to another individual." [15]

(4) Ms Louise has not otherwise demonstrated that she is providing care to her daughter that would require her to work permanently from home. Her daughter attends school, and does not require care during those hours. In any event, her husband works from home and is able to provide any care that their daughter may require during work hours.

"While the Respondent does not deny that the Applicant is a parent of a child who is of school age or younger, the Applicant's daughter attends school and throughout the course of a working day, the Applicant is unlikely to exhibit any parenting or carer responsibilities that are dissimilar to other parents participating in the broader Australian workforce that attend office locations throughout Australia."[16]

[40] To a significant extent, Metcash's submissions conflate the circumstances prescribed by sections 65(1A)(a) and (b). Nothing in the first of those provisions requires a parent also to be a carer. While section 65(1A)(a) captures an employee "who has the responsibility for the care" of a child, I read the provision as being intended to cover non-parents with "parental" responsibilities, such as guardians. This flows from the use of the disjunctive in the phrase "the employee is the parent, or has the responsibility for the care, of a child".
[41] What Ms Louise must demonstrate is that her request for an exemption from the Office Direction was "because of" her circumstance as a parent, and "relates to" that circumstance. By focussing only on the question of whether Ms Louise is a carer of her daughter, and what "caring" requires, Metcash has failed to grapple with the totality of Ms Louise's case in this regard.

[42] As I have stated, Ms Louise contended that the premise of her request was to minimise the risk of being exposed to pathogens in the workplace that she would bring into the home, endangering her daughter. Her position was summarised in the following exchange during her cross-examination at the hearing:[17]

"Ms Louise, you just mentioned that your daughter attends training at night time, this request for a flexible work arrangement is so you can work from home on a permanent basis. Your daughter doesn't attend sporting events or sporting training schedule, for instance, during the working day. Why are you requiring to work from home if your daughter is attending these events after hours? --- Because pathogens et cetera are airborne in the work environment. It's the work environment itself that is detrimental. It's the communalative [sic - cumulative?] environment where it's continually exposed to different pathogens, colds, surface exposures. You have elevators, you've got bathrooms, communal meeting rooms, all of those areas are exposed to pathogens and airborne pathogens are what the risk is that I'm trying to decrease.

Ms Louise, you've already mentioned that your daughter attends school, is there a possibility that she's exposed to pathogens in the school environment? ‑-- Certainly, which is why we then try and reduce our exposure as best we possibly can, so that she can have as normal of a life as reasonably possible and we add that by - sorry, we contribute to that by reducing our exposure so that, as I said, she can continue to attend school, which is a legal requirement."

[43] To lend context to these passages, Ms Louise gave evidence to the effect that:

(1) her daughter attends school full-time and travels to and from work on the bus, as do her other two children; and

(2) her daughter plays soccer and tennis, requiring training two to three times a week and games on the weekend.

[44] Ms Louise led evidence regarding the need to minimise the risk of introducing pathogens into the home. These included a statement from her husband, Vincent Louise, a letter from Professor Hiran Selvadurai, Head, Department of Respiratory Medicine at The Children's Hospital at Westmead, and a letter from Sharon Hunt, a Cystic Fibrosis Nurse Consultant at that Hospital. Metcash submitted that I should give this evidence little to no weight, for a variety of reasons. I have had regard to its submissions in considering the weight to attach to the evidence, but I am not persuaded to ignore it altogether.[18]

[45] In his statement, Vincent Louise expressed his views as to the importance of minimising infection in the home. I accept Metcash's submissions that these are lay opinions, and I accord them limited weight. Mr Louise also stated that his employer "fully supports [him] working from home full-time due to [their] family's circumstances".[19]

[46] In a letter dated 5 November 2024, Ms Hunt stated:[20]

"Children with Cystic Fibrosis are predisposed to recurrent severe respiratory infections. These infections cause progressive damage to the lungs resulting in decreasing lung function.

Infection minimisation is one of the cornerstones of CF management and all family members need to be vigilant to help minimise infection in the home. Catherine's experience is that the ability to work from home has had health advantages for herself and subsequently [her daughter].

We would greatly appreciate any allowances you can make that will enable to continuation of some flexible work practices."

[47] In a letter dated 25 February 2025, Professor Selvadurai stated:[21]

"This letter is to support the application by Catherine Louise to continue her current work from home agreements [sic].

Catherine's daughter, [name omitted] is a 16 year old girl with Cystic Fibrosis. This condition requires intensive treatment with physiotherapy and high nutritional intake. Therefore, caregivers have to undertake a great deal of time providing these cares. Additionally, [name omitted] is an active child participating a variety of sports as this is essential for her lung health. As such, transporting her to sporting events is a time impost.

Finally, I would like to minimize infections in the household to prevent serios [sic] lung injury. The COVID experience taught us that WFH arrangements significantly reduced exposure to common viruses in the household.

On behalf of the CF team, we would greatly appreciate any allowances you can make that will enable to [sic] continuation of some flexible work practices."

[48] Metcash did not lead evidence in response to that of Ms Hunt and Professor Selvadurai. Its response was confined to its submissions. In respect of Ms Hunt's evidence, Metcash submitted:[22]

"...Ms Hunt does not provide evidence that a parent of a CF sufferer working from home has a tangible or quantifiable health outcome for individuals suffering from CF nor does it evidence that there is any increased risk of infection for any individual attending the Location."

(The reference to "the Location" is a reference to the Metcash office at Macquarie Park.)

[49] As to Professor Selvadurai's evidence, Metcash submitted at the hearing that the Professor "does not state a carer should be working from home on a permanent basis".[23] It also stressed the Professor's use of the phrase "some flexible work practices" (my emphasis).

[50] To a point, I accept Metcash's submissions regarding the evidence of Ms Hunt and Professor Selvadurai. Neither of them says that Ms Louise must work from home on a permanent basis. However, both of them offer views as to the desirability of minimising infections in the home. This in essence is Ms Louise's stated goal.

[51] Ms Louise also relied on a document titled "Standards of Care for Cystic Fibrosis", published by Cystic Fibrosis Australia and The Thoracic Society of Australia and New Zealand ("SOC Document").[24] That document states:[25]

"Infection prevention and control strategies in CF have evolved in response to the mounting evidence demonstrating the risks of infection through person-to-person pathogen transmission, acquisition from health care settings and environmental exposures. Outpatient environments are increasingly recognised as a potential source of

pathogen transmission through contact with contaminated surfaces and airborne particles generated by coughing and lung function testing. ...

Surveillance for respiratory pathogens remains crucial in the management of patients with CF of all ages. Pulmonary infection drives inflammation and structural lung damage and is associated with worse lung function and poorer clinical outcomes. ..."

[52] A further document on which Ms Louise relied was a paper titled "Reducing the Risk of Infections in Everyday Life: Information for People with Cystic Fibrosis and their carer's In Australia" [sic], dated October 2020.[26] The paper was authored by Dr Tonia Douglas, Dr Siobhain Mulrennan and Dr Peter Middleton, "on behalf of the CF Centre Directors, Australia". That paper ("CF Centre Paper") included the following statements:

"Preventing infection is a serious issue for people with CF. Actions that can be taken to reduce everyday contact with, and exposure to, potentially harmful pathogens...are an important part of daily life."[27] (Emphasis in original)

"The ideal situation is for all people with CF to be able to go about their daily lives without restriction and to do so safely."[28]

"Children with CF are encouraged to take part in all usual activities and sports/games for their physical and emotional health."[29]

"The benefits of exercise and sport cannot be overstated in CF. Exercise helps with airway clearance of mucous, improves physical fitness and strength, and improves emotional wellbeing and quality of life. In childhood, exercise helps lung growth and development and introduces the value of teamwork and social skills. ..."[30]

[53] In response to the CF Centre Paper, Metcash submitted:

"It is clear that the authors of the article are acutely aware that suffers of cystic fibrosis should continue to participate in society and the workplace. It is illogical to then make the submission that carers of individuals with cystic fibrosis should disrupt their lives when the recommendation from these authors is that sufferers should not be doing so."[31]

"Clearly the authors of the journal article are not of the view that suffers of cystic fibrosis should place restrictions on their daily lives, nor are they of the view that suffers of cystic fibrosis should not attend workplaces. In fact, their view is contrary. It is illogical for the applicant to submit that more stringent conditions should apply to carers when carers are not suffering from the condition."[32]

[54] Once again, Metcash's submissions do not fully grasp Ms Louise's case. Ms Louise did not claim that her daughter's condition requires her (Ms Louise) to be housebound. She gave evidence that she seeks to give her daughter as normal a life as possible. That includes having her attend school and taking part in sports. The CF Centre Paper notes the importance of such activities for children with cystic fibrosis. However, that has to be balanced against the need to guard against the risk of infection, as both that paper and the SOC Document make clear. Ms Louise claimed, in effect, that not attending the office assisted her in striking that balance.

Whether the basis for the request otherwise lacks substance or credibility

[55] A large part of Metcash's evidence and submissions was directed towards demonstrating that the reasons Ms Louise advanced for seeking an exemption from the Office Direction ought not be accepted as legitimate. It contended that Ms Louise's conduct has been "flagrantly inconsistent" in a number of ways.[33]

[56] First, it submitted that Ms Louise had originally stated that she intended to comply with the Office Direction, until she found out that others had been granted an exemption from it. Martin Roberts[34] gave evidence regarding a conversation he had with Ms Louise on or about 26 September 2024. He stated that "Catherine indicated that initially she was positive about the mandate and intended to comply with it, however, her position changed when she found out that other employees had been given an exemption".[35]

[57] Ms Louise denied making such statements to Mr Roberts. She said that she had told Mr Roberts that in her experience office attendance was never strictly enforced, and that she would "wait to see how official the directive was and, if necessary, would apply for an exemption".[36]

[58] Ms Louise did not require Mr Roberts for cross-examination, although I am mindful that she was self-represented. At the same time, Metcash did not cross-examine Ms Louise on her version of the conversation.

[59] Second, Metcash led evidence of Ms Louise attending work-related social events. Claire Adamiak[37] gave evidence of a supplier event that Ms Louise attended at the Governor Hotel in Macquarie Park on 6 September 2024. Mr Barakat and Mr McLoughlin gave evidence of Ms Louise attending a supplier Christmas event at the Woolly Bay Hotel at Woolloomooloo on 6 December 2024. Mr McLoughlin also described a staff lunch that Ms Louise attended on 11 December 2024.

[60] Nicole Lawler[38] provided a statement in which she outlined "safe working practices upheld at Metcash and specifically, at the 1 Thomas Hold Drive, Macquarie Park Head Office".[39] These include a clean desk policy; access to antibacterial desk wipes to clean surfaces; access to hand sanitisation stations; the maintenance of distance between work stations; providing employees with their own mice and keyboards so that they do not need to be shared; accessible kitchen spaces and outdoor areas for breaks; and, contracted cleaners who perform cleaning duties throughout the day. In reliance on that evidence, Metcash submitted that the environment at the Macquarie Park office is much better controlled than that of the venues that Ms Louise voluntarily attended for social functions.

[61] Ms Louise responded at length to Metcash's evidence in her written submissions in reply. To my mind, her response did not fundamentally call into question the pertinent facts regarding her attendance at social functions as described by Metcash's witnesses. However, she drew a distinction between attending "a one-time controlled event" and "spending multiple full workdays in a shared office environment with prolonged exposure to others".[40]

[62] Third, Metcash led evidence from Mr Barakat and Mr McLoughlin that during a meeting on 3 February 2025, Ms Louise had stated that she wanted to work from home to maintain a work-life balance.

[63] Ms Louise described this as a "mischaracterisation" of her position. She said that she had never framed her request as "purely" about work-life balance.[41]

[64] Fourth, Metcash contended that Ms Louise's personal and domestic arrangements are inconsistent with the reasons for which she claims to have made the request. It relied, for example, on Ms Louise's evidence that her daughter and two other children attend school full-time and travel to and from school on the bus; that her daughter participates in sport; that Ms Louise attends soccer games with her daughter and other children; and, that she occasionally attends school assemblies for her children. I have dealt with those contentions in the context of considering the basis on which Ms Louise makes her request.

[65] Ms Louise is the parent of a school-age child with cystic fibrosis. She has made a request to minimise the risks of bringing pathogens into the home which may infect her daughter. I accept Metcash's submissions that there are means by which Ms Louise might achieve her aim other than by working from home. I add that the evidence did not rise to the point of establishing that Ms Louise's request "is based on medical necessity", as she submitted.[42] However, there is a sense in Metcash's case that unless Ms Louise's daughter and family were effectively housebound, it would not be satisfied that Ms Louise ought to be exempted from the Office Direction.

[66] I further accept that not all of Ms Louise's conduct sits comfortably with the strength with which she is asserting the need to work from home. However, Ms Louise did not argue that she is required never to leave her house. As she submitted, her request was "based on minimising overall exposure, not eliminating all risk entirely".[43] Her position is that being in a closed environment like an office for whole days - or multiple days at a time - exposes her to a higher risk of being infected than attending sporting or school events with her children, or the occasional social function.

[67] I do not accept Metcash's submission that Ms Louise's conduct precludes a finding that there is a nexus between her request and her circumstances as a parent. I do not regard Ms Louise's arguments as to the need to minimise the risks of introducing pathogens to the home are confected, as Metcash appeared to suggest. She led evidence to support her position. Metcash did not properly engage with that case.

[68] In short, I am satisfied that Ms Louise sought to be exempt from the Office Direction "because of" her circumstance as a parent and that the request for that exemption "related to" that circumstance.

[69] To reiterate, Ms Louise is the parent of a school-age child. She made a request to be exempted from the Office Direction for reasons which I have found related to her circumstance as a parent. It is agreed between the parties that the request was in writing, and set out the details of the change sought and the reasons for the change. At the date she made the request, Ms Louise had completed more than 12 months continuous service with Metcash.

[70] For these reasons, I find that Ms Louise's request was validly made.

Other preconditions to the Commission arbitrating the dispute

[71] Having made that finding, I can briefly address why the other preconditions to the Commission arbitrating the dispute are satisfied.

[72] First, the evidence demonstrates that the parties attempted to resolve the dispute at the workplace level prior to Ms Louise commencing these proceedings.[44] As referred to above, Ms Louise discussed her request with Mr Roberts on or about 26 September 2024, and with Mr Barakat and Mr McLoughlin on 4 November 2024. The request was also the subject of email correspondence between Ms Louise and Mr Barakat between 4 and 13 November 2024.

[73] Second, the Commission is required to first deal with a dispute by means other than arbitration, unless there are exceptional circumstances.[45] I convened a conference with the parties on 15 January 2025 during which I attempted to resolve the dispute by conciliation.

[74] Metcash did not lead evidence as to the process by which it considered and determined to refuse Ms Louise's request. There was no dispute that Metcash had responded to the request. However, Metcash did not lead evidence as to when and how it did so.

[75] Metcash submitted that it informed Ms Louise that her request had been refused on 11 November 2024. The only evidence of a communication between the parties on that day is the email from Mr Barakat to Ms Louise reproduced above. If that is the communication to which Metcash referred, it was not provided within 21 days of the request, as required by section 65A(1). It also cannot be said to have included details of the reasons for the refusal, including Metcash's particular business grounds for refusing the request and how they apply to the request, as required by section 65A(6).

[76] In fairness to Metcash, however, and in the absence of any other evidence, I consider that Mr Barakat's email to Ms Louise of 4 November 2024 (reproduced above) is better to be regarded as Metcash's response to the request. That email provided some explanation for Metcash's decision to refuse the request. It was sent to Ms Louise within 21 days of her request.

[77] There may be room to question whether Mr Barakat's email of 4 November 2024 satisfied the requirements of section 65A(6). However, this was not a matter that Ms Louise put in contention. I will not traverse that issue.

The requirements of section 65A(3)

[78] At the conclusion of the hearing, there was no controversy between the parties that two of the requirements of section 65A(3) were met in this case. That is:
- (1) that Metcash had discussed Ms Louise's request with her, and genuinely tried to reach agreement with her on changes to her working arrangements to accommodate her circumstances;[46] and

Whether Metcash had regard to the consequences of the refusal for Louise

[79] Metcash did not lead any evidence to demonstrate that it had regard to the consequences of the refusal for Ms Louise. Its submissions did not traverse that issue.
[80] Given the stridency with which Metcash sought to challenge the legitimacy of the grounds put forward by Ms Louise, there is cause to doubt whether it ever accepted the premise of Ms Louise's request. That said, I am mindful that in his email of 4 November 2024, Mr Barakat acknowledged Ms Louise's personal circumstances. He noted the steps taken by Metcash to provide a clean and safe workplace, and encouraged Ms Louise to take self-protective steps such as wearing a mask and regularly sanitising her hands. Perhaps more helpfully, he also proposed a variation to the Office Direction, with the effect that Ms Louise would only be required to attend the office two days a week (subject to the caveat that she otherwise be available to attend as directed). Even so, the email falls short of demonstrating a real appreciation or acceptance of the reasons advanced by Ms Louise for her request, or any acknowledgement of the consequences for her of the request being refused.
[81] It is convenient to address at this point the following submission that Metcash advanced:[47]

"The Respondent submits that in circumstances where an employee is required to provide acute care for a child, that the Respondent works with its employees in a constructive manner and supports its employees' use of leave pursuant to s 97 of the Act (if appropriate)."

[82] There are two points to make about that submission. First, it is largely unsupported by evidence. The only evidentiary basis for the submission is a statement by Ms Lawler that Metcash complies with its legal obligation to provide personal/carer's leave "for employees that are unwell or injured or need to care for their unwell or injured family members".[48]

[83] Second, and more significantly, the submissions have little force (and would give Ms Louise scant comfort) when Metcash does not accept that Ms Louise is generally required to provide care - much less, acute care - for her daughter during work hours.

[84] There was significant disagreement between the parties as to whether the refusal was on reasonable business grounds.

[85] Metcash submitted as follows:[49]

"13. On 11 November 2024, the Respondent notified the Applicant that the Exemption Request had been denied due to the Respondent's requirement for staff to attend office locations in-person for reasons, including but not limited to, the following:

(a) to foster an environment of collaborative working;

(b) to improve working relationships between colleagues;

(e) to improve the health and wellbeing of employees by promoting connections between them.

14. The Respondent submits that each of the reasons described above at paragraph 12 [sic -13] are ultimately designed to increase the business' performance which is in the interests of all stakeholders including the directors, employees and shareholders of the Respondent.

15. The Respondent submits that it is entirely within the best interests of the Respondent and reasonable for the Respondent to direct the Applicant to attend the office a minimum of three days per week."

[86] Metcash led no evidence to support those submissions. There is in particular no evidence of any communication from Metcash to Ms Louise on 11 November 2024 containing the information described in Metcash's submissions. The only communication which appears to traverse the reason for which Metcash refused Ms Louise's request is Mr Barakat's email to her of 4 November 2024. The explanation is confined to the following:

"The ALM Leadership Group and GLT are in alignment that in person connection, team collaboration and making opportunities for regular knowledge sharing are vital to help us move forward as a business and we need you in the office to participate."

[87] There is no evidentiary basis on which I could determine:

(1) the reasons for which Metcash made the Office Direction. It is significant in this regard that Metcash submitted that those reasons included but were not limited to those set out at paragraph 13 of its submissions. It follows that the Commission has an incomplete picture of Metcash's position;

(2) whether the Office Direction would achieve the objectives outlined at paragraph 13 of Metcash's submissions;

(3) whether doing so would "increase [Metcash's] performance"; or

(4) whether the Office Direction is otherwise "entirely within the best interests" of Metcash.

[88] At the hearing I asked why the company had not led evidence in support of its submissions that it had reasonable business grounds to refuse the request. Metcash submitted that "these facts are not in dispute".[50] That is not correct.

[89] In Ms Louise's evidence and submissions in chief responded to, and challenged, what she then understood to be the reasons for which Metcash refused her request. She made a number of contentions.

[90] First, Ms Louise contended that her role is an administrative one that does not require her in-person attendance at the office. She provided her job description in support of this contention.

[91] Second, Ms Louise contended that her role is outcomes-based, and that modern workplace tools such as video conferencing, instant messaging, and shared digital platforms enable seamless communication without the need for physical presence. She submitted that she has shown her ability to effectively and productively collaborate with her colleagues through such technology. In support of those submissions, Ms Louise provided screenshots of her participating in on-line meetings, and copies of emails and other communications with work colleagues.

[92] Third, Ms Louise contended that her ability to work effectively and productively from home was demonstrated by the fact that she has worked remotely since joining Metcash without any performance issues being raised with her. She stated that there has been no suggestion of a lack of collaboration or productivity. In support of those submissions, Ms Louise provided copies of her performance reviews for the years 2021 to 2024.

[93] Fourth, Ms Louise contended that Metcash had been inconsistent in its application of the Office Direction. She stated that a colleague in a similar role to hers was permitted to work from home four days a week. She claimed that others worked entirely remotely. Her evidence identified the individuals to whom she referred.

[94] Metcash did not lead evidence in response to those contentions and submissions. Ms Louise's fourth contention is the only one that Metcash directly addressed, but did not expressly controvert, in its submissions. Metcash submitted that employees are required to attend an office "in accordance with the relevant directions of the Respondent".[51] However, "[t]he personal circumstances of other employees are not disclosed by the Respondent to third parties and the Respondent considers each request for flexibility on its merits".[52] This submission says nothing as to the accuracy or otherwise of Ms Louise's contention.

[95] Metcash tendered into evidence a "Letter of Offer" dated 24 July 2020 that set out the terms on which it originally offered employment to Ms Louise.[53] The Letter of Offer referred to Ms Louise being employed under the Clerks - Private Sector Award 2010 in the position of Retail Promotions Coordinator. I note that the job description that Ms Louise tendered was for the position "Category Coordinator".[54] Metcash did not dispute that it applied to her. I do not know why and how the title of her position changed, but that is not material. It seems uncontroversial that Ms Louise's position was and is an administrative one.

[96] However, Metcash submitted that the Office Direction was consistent with the terms on which Ms Louise is employed. That is, the Letter of Offer described Ms Louise's "location" as "Macquarie Park". It provided that:

"Your role will initially be based at the location noted above, and you agree to work from any other location/s as required and directed by Metcash from time to time. You may also need to travel to other Metcash Group sites."

"The Respondent submits that from the beginning of the Applicant's employment and at all other material times, the Applicant was aware and had agreed that the location that the Applicant was required to work from was the Location or as otherwise directed by the Respondent."

[98] I do not consider that Metcash can derive much assistance from the Letter of Offer. Its submissions in this regard ignore the objectives of Part 2-2 Division 4 of the Fair Work Act. As part of the National Employment Standards, the purpose of flexible working arrangements is to accommodate circumstances of individual employees if the employer is in a position to do so.[55] This might require a departure from the written terms of the employee's employment.
[99] Finally, Metcash drew my attention to the following (obiter dicta) observations of Platt C in Shane Gration v Bendigo Bank ("Gration")[56]:

"I accept the benefits described accrue from face to face interaction and are desirable in the workplace. The Respondent's reasonableness is further evidenced by it agreeing to provide further flexibility (by way of carers leave and/or additional work from home) where Mr Gration is unable to attend the workplace as a result of the need to care for his daughter. Unfortunately, Mr Gration's approach has not been so accommodating. Mr Gration appears to be only concerned about himself. The employment relationship is a two-way street. In my view the Respondent's rejection of Mr Gration's request is soundly based on reasonable business grounds."

[100] Metcash sought to equate the Ms Louise's circumstances with those described by the Commissioner in that passage. It submitted that it "has been willing and remains willing to provide flexibility where the applicant is unable to attend the workplace, as a result of the need to provide care for her daughter".[57] I accept that Metcash has offered Ms Louise some additional flexibility regarding the Office Direction, in that she need only work from the office two days a week. However, it has otherwise said only that Ms Louise can avail of herself of her statutory entitlements to personal/carer's leave.

[101] I make two other observations about Gration. First, in that case Bendigo Bank had directed its employees to return to the office two days per week. Mr Gration had sought to be exempted from that requirement. To that extent, the circumstances bear an obvious similarity to the present case. However, Bendigo Bank had led evidence as to why it had determined to require people to return to the office and the benefits that it contended would flow, to the business and its employees, as a result of the direction.[58]

[102] The Commissioner's opening statement in the passage reproduced above was clearly informed by that evidence. In the same paragraph in which that passage appeared, the Commissioner stated: "On the evidence, I accept that there are benefits to the Respondent, the Applicant and his work colleagues from face to face interactions."[59] (Emphasis added)

[103] However, unlike the situation in Gration, I have no evidence on which to base an opinion that there are benefits to be derived - for Metcash, Ms Louise and other employees - from in-person collaboration between work colleagues in the particular circumstances of this case. Given the weight that Metcash placed on those asserted benefits, it needed to do more than ask me, in effect, to take judicial notice of them.

[104] Second, in Gration the Commissioner made adverse findings as to Mr Gration's evidence.[60] He concluded in the passage above that Mr Gration "appears to be only concerned about himself". No such concerns arise in the present case.

Conclusions regarding section 65A(3)

[105] To a degree, Metcash appeared to equate the giving of a reasonable direction with having reasonable business grounds to refuse a request for flexible work arrangements. For example, it made the following submission:[61]

"The Respondent is entitled to direct its employees to return to the office five days per week, however, in an effort to afford flexibility to all employees, the Office Return Direction was limited to a return to the office of three days per week."

[106] I do not disagree that Metcash is entitled to direct its employees to work from the office. But that is not the relevant enquiry.

[107] Ms Louise submitted that Metcash's handling of her request was characterised by "a refusal to meaningfully engage with the medical basis of [her] application and a reliance on generic workplace policies rather than an individualised assessment".[62] That is very much the impression created by Metcash's case in these proceedings.

[108] Metcash did not lead any evidence to demonstrate that it had regard to the consequences for Ms Louise of refusing her request. The evidence on which Metcash relied was directed towards demonstrating that the reasons for which Ms Louise made her request lacked veracity or credibility. Its case was characterised by a scepticism about Ms Louise's reasons, which it invited me to share. In circumstances where Metcash appears not to have accepted Ms Louise's reasons, which I have found to have substance, it is difficult to see how it can be said to have had regard to the consequences for Ms Louise of refusing her request. On the evidence, I am not satisfied that it did.

[109] I have already made clear that Metcash has not provided an evidentiary basis on which I could find that it had reasonable business grounds on which to refuse the request. It also did not meaningfully engage with the case that Ms Louise advanced which put that in issue. On the evidence, I am not satisfied that the refusal was on reasonable business grounds.

[110] On one analysis, the findings above are sufficient to dispose of the matter. That is, as the requirements of section 65A(3) were not met, Metcash could not purport to refuse the request.

[111] In Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust ("Naden")[63] the Full Bench made the following observations:

"[39] The obligation to consult over requests for flexible working arrangements is found in s 65A(3)of the Act. The subsection provides that the employer may refuse the request only if the four requirements described in paragraphs (a) to (d) of s 65A(3) are met. That is, an employer is prohibited from refusing a request unless each of those requirements is satisfied. The requirements are that the employer has held discussions with the employee and genuinely tried to reach agreement about the request for flexible working arrangements, 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 section commences with the words and punctuation "The employer may refuse the request only if:". This clearly indicates that all four requirements must be met. If they are not, the employer is not permitted to refuse the request.

[50] The significance of the finding that the requirement in s 65A(3)(c) was not met is that the respondent could not refuse the request. The Commissioner was, with respect, wrong to regard the question of whether the refusal was based on reasonable business grounds as the only matter of substance in the resolution of the dispute. Each of the matters in s 65A(3) must be satisfied before an employer is entitled to refuse a request for flexible work arrangements. It follows that the resolution of the dispute should be a determination that the respondent was not entitled to refuse Ms Naden's request and Ms Naden is entitled to return to work in accordance with her request for a flexible working arrangement."

[112] However, in Naden the Full Bench was dealing with an appeal from a decision made pursuant to a dispute settlement provision in an enterprise agreement. The enterprise agreement empowered the Commission to "make a determination that is binding on the parties".[64] The Commissioner at first instance was not conducting an arbitration under, and constrained by, section 65C.

[113] I consider that in the present case I should adopt the approach taken by the Full Bench in Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex[65]:

"[34] What is readily apparent from a plain reading of the statutory provisions is that in arbitrating a dispute under s 65C, the Commission is not compelled to make an order consistent with a finding that it has made in respect of an employer's refusal of a flexible working arrangement request. The range of orders available to the Commission along with the requirement 'to take into account fairness between the employer and the employee' (s 65C(2)) indicates that there is a broader discretion conferred to the Commission including the weighing of the interests of the employer and employee when arbitrating a dispute. In the present case, the fact that the Deputy President found the Respondent's refusal of the Fourth Request was not supported by reasonable business grounds did not compel an order to be made that was consistent with that finding. This is because the Deputy President was arbitrating the dispute and not simply reviewing whether the Respondent had refused the request on reasonable business grounds."

Catherine Louise v Metcash Trading Ltd [2025] FWC 2090

At a glance

Court

Decision date

Source

Judgment (270 paragraphs)

Catherine Louise v Metcash Trading Ltd [2025] FWC 2090 (18 July 2025)

Parties

Legislation Cited (3)