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

Referral of dispute about flexible working arrangements - whether valid request - circumstance did not apply at time of application - no jurisdiction to deal with the dispute

• [1] On 1 June 2025, Mr Charles Zammit referred a dispute to the Commission relating to his request to Sydney Water Corporation (Sydney Water) for flexible work arrangements under s..65 of the Fair Work Act 2009 (the Act). The referral is made under s.65B(3) and attempts to resolve the dispute by conciliation have been unsuccessful.

• [2] The question is how to deal with the dispute. For the following reasons, I have decided that the request for flexible working arrangements was not validly made under s 65B(3) of the Act. I do not have jurisdiction to arbitrate the dispute. The application will be dismissed.

• [3] Under s.65 of the Act, if one of the circumstances in s.65(1A) apply to an employee, and the employee would like to change their working arrangements 'because of' those circumstances, the employee may request "a change in working arrangements relating to those circumstances" from the employer. This requires a relevant 'nexus' between the request and the circumstance upon which it is based.[1]

• [4] The relevant circumstances are that the employee is pregnant, is the parent or has responsibility for the care of a child of school age or younger, is a carer within the meaning of the Carer Recognition Act 2010, has a disability, is 55 or older, is experiencing family and domestic violence, or provides care or support to a member of their immediate family or household who requires that care or support because they are experiencing family and domestic violence.

• [5] The right to request flexible working arrangements applies to employees other than casuals who have at least 12 months' continuous service immediately before making the request. It also applies to regular casual employees who have been employed sequentially during a period of at least 12 months and have a reasonable expectation of continuing employment on a regular and systematic basis.

• [6] A request for flexible working arrangements must be in writing and must set out the details of the change sought, and the reasons for the change.

Responding to a request for flexible working arrangements

• [7] Under s.65A of the Act, if an employee makes a valid request for a change in their working arrangements under s.65(1) of the Act, the employer must respond to the request in writing within 21 days.

• [8] The response must either:
  1. state that the request is granted, or
  2. set out a different but agreed change (if following discussion between the employer and employee, agreement to a different change in working arrangements is reached), or
  3. state that the employee refuses the request, including details of the reasons for refusal, the particular business grounds for refusing the request, and how those grounds apply to the request. The response must also either:
     1. set out changes other than those requested that the employer would be willing to make to accommodate the employees' circumstances to any extent, or
     2. state that there are no such changes, and
     3. set out the effect of s.65B (Disputes) and s.65C (Arbitration)

• [9] Importantly, an employer may only refuse a valid request for flexible working arrangements if:
  1. They have discussed the request with the employee and genuinely tried to reach an agreement with the employee about making changes to their working arrangements to accommodate the circumstances mentioned in subsection (1), and
  2. No agreement has been reached, and
  3. They have had regard to the consequences of the refusal for the employee, and
  4. The refusal is on reasonable business grounds.

• [10] Genuinely trying to reach agreement does not require the employer to agree to a change to the employee's working arrangements if the employer would have reasonable business grounds for refusing a request for the change. Such grounds include (but are not limited to) that the arrangements would be too costly, or that there is no capacity to change the working arrangements of other employees to accommodate the change, or that it would be impractical to change other employees' working arrangements or recruit new employees to accommodate the change, or that the new working arrangements would likely result in a significant loss in efficiency or productivity, or have a significant negative impact on customer service.

Disputes about requests for flexible working arrangements

• [11] A dispute between an employer and employee about a request for flexible working arrangements can be referred to the Commission under s.65B of the Act if the dispute relates to a request under s.65(1) for a change in working arrangements relating to circumstances that apply to the employee, and either the employer has refused the request, or 21 days have passed since the request was made and no written response from the employer has been given under s.65A.

• [12] The parties must first attempt to resolve the dispute by discussion at the workplace level. Only if those discussions do not resolve the dispute can it be referred to the Commission. Except in exceptional circumstances, the Commission can only arbitrate the dispute if it has first dealt with the dispute by other means. The orders that can be made by the Commission are limited by s.65C and must take into account fairness between the employer and employee. They must also not be inconsistent with the Act or a fair work instrument term that applied to the parties immediately before the order was made.

• [13] If the employer does not give the employee a written response to their request under s.65A, the Commission can order that the employer is taken to have refused the request.

• [14] If the employer refused a request, the Commission can order that it would be appropriate for the grounds on which the request was refused to be taken to have been reasonable business grounds, or not to have been reasonable business grounds.

• [15] If satisfied that the employer has not responded, or has not responded adequately, to a request under s.65A, the Commission can order that the employer take such further steps as are appropriate having regard to the matters in s.65A.

• [16] Finally, but only if satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order, the Commission can order that a request be granted, or that specified changes be made (other than those requested) in an employee's working arrangements to accommodate, to any extent, the circumstances that apply to the employee and that gave rise to the request.

• [17] Mr Zammit has been employed by Sydney Water since 30 March 1992. On 7 April 2025, he submitted a request to Sydney Water for flexible working arrangements. In connection with approaching his 55th birthday, Mr Zammit sought:
  1. A compressed working week (full-time hours over 4 days per week),
  2. 2 days in the office and 2 days working from home, and
  3. 1 of his office days to be worked from the Ryde office and one from his 'primary' office in Parramatta.

• [18] The reasons given for the request were two-fold:
  1. In relation to shifting to a 4-day week, Mr Zammit said this would enable him to better balance his professional commitments with personal pursuits that contribute to his well-being and community engagement, as he was seeking to increase his involvement in community activities, such as regularly attending meetings and volunteering at the local Men's Shed.
  2. In relation to working from home 2 days per week (in the context of a recent requirement for employees to work at least 3 days per week 'on site'), Mr Zammit said this would support his health and well-being by allowing him to incorporate regular training into his routine.

• [19] The difficulty for Mr Zammit is that at the time he made the request for a change in working arrangements because of the circumstance of being 55 or older, he was not yet 55. Mr Zammit turned 55 on 6 May 2025. The change in working arrangements he had requested under s.65(1) of the Act one month earlier was made at a time when the circumstance of being 55 or older did not apply to him.

• [20] In Quirke v BSR Australia Limited,[2] a Full Bench of the Commission summarised the requirements for a valid request under s.65 in this way:

"There are five discernible requirements in s 65 that must be satisfied in order for a request under s 65(1) to have been validly made. The first two requirements are contained in s65(1) itself. First, s 65(1)(a) requires that 'any' - that is, at least one - of the circumstances in s 65(1A) must apply to the employee. The use of 'apply' in the present tense connotes that the relevant circumstance must, as a matter of fact, exist (rather than being anticipated or the subject of anticipatory discussions) in respect of the employee at the time the request is made. It follows that, where the Commission is asked to arbitrate pursuant to s 65B(4)(b), it must be able to be satisfied that one of the circumstances in s 65(1A) applied to the relevant employee at the time of the employee's request for flexible working arrangements."

• [21] Mr Zammit accepts that his request was made prior to his 55th birthday. He nevertheless submits that the Commission can arbitrate the dispute because: the process was 'continuous and ongoing'; he was 55 by the time Sydney Water provided its formal written response; his request was made in "good faith"; and Sydney Water engaged in the consultation process without objecting to the request on jurisdictional grounds. These are all relevant to questions of fairness, but they do not affect whether the Commission has power to deal with the dispute under s.65.

• [22] When Mr Zammit made his request for flexible working arrangements, he was not yet entitled to make the request. It follows that the dispute currently before the Commission does not relate to a request to Sydney Water under s.65(1) of the Act for a change in working arrangements relating to circumstances that applied to Mr Zammit at the time the request was made. It is not a dispute of the kind that can be referred to the Commission under s.65B. It is accordingly not necessary to consider whether the other conditions for a flexible working arrangement are met, or whether Sydney Water had reasonable business grounds for refusing the request.

• [23] Mr Zammit urges the Commission to arbitrate the dispute under s.739 of the Act as a matter arising under an enterprise agreement, and I accept that a reference to dealing with the dispute in that way is found in Mr Zammit's outline of submissions. That does not change the nature of the application as one made in reliance on s.65B of the Act. It may be that a separate dispute about the issues raised by Mr Zammit can be brought under an enterprise agreement dispute settlement term that covers and applies to the parties. The dispute settlement process would first need to have been followed.

• [24] In the meantime, the application by Mr Zammit was made under s.65B of the Act and must be dealt with accordingly. It is not the role of the Commission, and nor would it be appropriate, to substitute one type of application for another to overcome a limit on its jurisdiction, whether for reasons of fairness or otherwise.

[1] Quirke v BSR Australia Limited [2023] FWCFB 209.

[2] [2023] FWCFB 209

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