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 - section 65A and reasonable business grounds considered - application dismissed

• [1] On 24 May 2025, Mrs Gagandeep (Skye) Kaur (Mrs Kaur or the Applicant) made an application to the Fair Work Commission (the Commission) under section 65B of the Fair Work Act 2009 (Cth) (the Act) seeking to resolve a dispute regarding flexible working arrangements with G8 Education Trading as Jellybeans Childcare (the Respondent).

• [2] The Respondent objects to the application on the grounds that it has reasonable business grounds to reject the requested arrangement. The parties were unable to resolve the matter at conciliation, so the matter was listed for a hearing on 30 July 2025. Ms Kaur provided witness evidence in support of her application.

• [3] Mrs Kuar is a full-time diploma qualified employee at one of the Respondent's childcare centres.

• [4] In late 2024, the Respondent conducted a statewide review to ensure safety and regulatory compliance within its operations.

• [5] Following this review, it was decided the Respondent would implement a rotational roster to meet minimum legal requirements regarding staffing minimums to ensure 50% diploma qualified staff on site during operating hours. The standard span of hours under the relevant Modern Award is 6:00am to 6:30pm.

• [6] As part of this review, Mrs Kaur was identified as one of two staff members who had a schedule with fixed finish times ranging from 3:00pm to 3:30pm. Mrs Kaur submits this has been her working arrangement since she commenced her employment in 2023, as the result of an agreement with management at the time.

• [7] As a result of the review, the Respondent transitioned its full-time diploma qualified staff to rotating rosters to assist in ensuring its compliance with the relevant regulations.

• [8] The Respondent's efforts to transition Mrs Kaur to the rotating roster, especially as it relates to afternoon work, has resulted in the Applicant's request for flexible working arrangements and the subsequent lodgment of this dispute.

• [9] Neither party provided a significant volume of material in support of their respective positions.

• [10] Mrs Kaur is seeking a flexible working arrangement that would mean her rostered hours of work with the Respondent would commence at 7:00am or 7:30am and end at 3:00pm or 3:30pm.

• [11] Mrs Kaur submits that she is seeking this flexible working arrangement as she has school-age children who require care and assistance with after-school activities, homework, and school commute. Mrs Kaur submits that her family does not believe it safe for the children to be unattended after school or for them to use public transport to commute home after school.

• [12] Mrs Kaur submits that when she commenced her employment with the Respondent, in 2023, she advised her then manager of her availability and family responsibilities.

• [13] The Respondent submits that, consistent with section 65A(3) of the Act, it has reasonable business grounds to refuse the request of Mrs Kaur for the following reasons:

• Child Safety: Qualified team members must be present during opening and closing shifts to ensure operational consistency and compliance.

• Legal Requirements/Compliance: The legal minimum requirement to maintain 50% diploma qualified staff members across the span of opening hours.

• Team equity and operational fairness: Multiple team members have expressed interest in similar early finish times due to various family or personal commitments. To ensure fairness and avoid preferential treatment, a rotating roster system has been implemented.

• Operational constraints: The nature of the Respondent's service requires consistent staff coverage throughout the day. Allowing multiple early finishes would compromise our ability to meet regulatory and care standards.

• [14] The Respondent submits that it has engaged with Mrs Kaur in relation to her flexible working arrangements request and that it has provided three different roster options to Mrs Kaur in an attempt to balance her flexible working arrangement request and the reasonable business operational requirements.

• [15] The offered rosters are outlined below:

• [16] The Respondent submits that, despite attempts and discussions to explore alternative arrangements that take into account the Applicant's personal childcare requirements, the Applicant has not agreed with any of its proposals to date nor has she made proposals in consideration of the operational requirements.

• [17] The Respondent submits that the change in Mrs Kaur's hours of work was required after the operational review conducted in late 2024 which resulted in the rosters requiring adjustment to ensure that there are always at least 50% diploma qualified staff on site.

• [18] The Respondent submits that there is no evidence or written agreement supporting the position that any previous roster with Mrs Kaur was agreed to by the business.

• [19] The Respondent submits that as a full-time permanent employee who is diploma qualified the business requires Mrs Kaur to work the span of hours as contemplated by the Award.

• [20] Section 65A(5) of the Act, outlines the reasonable business ground in which an employer can refuse the flexible working arrangement request of the employee.

(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

(a) that the new working arrangements requested would be too costly for the employer;

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

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

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

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

• [21] Having reviewed the submissions and evidence of the parties, I have determined that there are reasonable business grounds for the Respondent to deny the request of Mrs Kaur. My reasons are as follows.

• [22] I find that the reasons provided by the Respondent as listed below are consistent with the requirements in s 65A(5) of the Act.

• Compliance with legal minimums and regulations;

• [23] As the Respondent has correctly pointed out, if Mrs Kaur was granted this flexible working arrangement, it would require the Respondent to adjust other employees' rosters to ensure that there is always 50% diploma coverage on site. It is apparent that, in its efforts to propose various options of a rotating roster, this is how the Respondent has been seeking to accommodate flexibility for Mrs Kaur. However, the options put forward by the Respondent have been rejected and it appears the Respondent has no further capacity to alter the rosters of others in order to accommodate the somewhat restrictive roster pursued by Mrs Kaur.

• [24] With its offers of compromise failing, it is not unreasonable to conclude that accommodations consistent with Mrs Kaur's request would likely have an increased cost impact to the Respondent. The result of which would be the need of additional staff (in addition to the already regularly rostered staff whose schedules the Respondent has already been considering in its attempts at compromise), assumedly obtained at added cost or operational inconvenience, required to cover shift times that Mrs Kaur would not be required to work. Further, the purpose of the Respondent's rostering requirements has been noted, being compliance with relevant regulations to ensure minimum staffing levels and child safety.

• [25] The Respondent submitted that the roster sought by Mrs Kaur would interest several of its staff. I note that the Respondent did not lead evidence to support this claim. However, I consider that this argument is reasonable and logical as these hours of work would generally be favourable to employees of the Respondent with family and childcare commitments. I accept that this could result in tension and other workplace issues, arising from equity and fairness. This is especially so in the circumstances where the accommodation of such preferable roster could be at the inconvenience of others.

• [26] I find that reasonable business grounds exist for denying the flexible working arrangement consistent with section 65A(5) of the Act.

• [27] The application is therefore dismissed. An Order to that effect has been issued.[1]

[1] [PR793686].

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