1. The applicant made the FWA request in writing, setting out details of the change sought and the reasons for the change (s.65(3) of the Act); and

1. The respondent did not provide a written response to the FWA request within 21 days and ultimately refused the request (see s.65B(1)(b) of the Act).

• [5] Ms. Chandler is a part-time employee in Westpac's Mortgage Operations, Certifications and Settlements Team (Mortgage Operations Team) and has been employed by Westpac since 2002. In this team, Ms. Chandler advances loans, distributes fees, discharges internal debts and actions enquiries which filter through the team inbox. This work is performed through a program called 'Spider' and Ms. Chandler's team is referred to as the 'Spider Function/Team'.

• [6] The Mortgage Operations Team consists of 5 discrete teams, one of which is the Settlements Support Services Team (overseen by Mr. Potts, Senior Operations Manager). Within this team there is a further sub-group known as the Payments & Registration and RRB Spider Function. That group is managed by Mr. Bolton. The Spider Function, in which group the applicant works, is comprised of 9 employees who are located in Kogarah, Parramatta and Tasmania.

• [7] At the commencement of her employment, Ms. Chandler was engaged on the basis that her role would be performed on a permanent basis from the Kogarah corporate office.

• [8] Ms. Chandler works part-time hours over five days per week and her usual start time is 8.00am. Her usual finish time, other than on Fridays, is 2.00pm.

• [9] In 2021 Ms. Chandler and her partner purchased the site of their present residence in Wilton. This location is further away from the Kogarah corporate office than their previous residence.

• [10] Ms. Chandler and her partner have two young children who attend a private school approximately 25-30 minutes away from the family home in the opposite direction to Westpac's Kogarah office. School hours are between 7.40am and 2.25pm. Ms. Chandler is responsible for school pick-ups and drop offs. Her partner is self-employed and, since early 2025, has been working at variable locations in Sydney and interstate. He has limited capacity to assist with school drop-offs and pick-ups given his work commitments.

• [11] Ms. Chandler has a history of working remotely from home. From early 2017 when Ms. Chandler worked in the 'Change Team', she was only required attend a corporate office one day per week. In or around mid-2018, she transferred to the Discharges Team and worked remotely full-time until she went on maternity leave in February 2019. Once she returned from maternity leave in April 2021, Ms Chandler continued working remotely full-time until August 2022 when she was required to attend a corporate office (Kogarah) one day per month from August 2022 pursuant to an arrangement entered into with the respondent.[1]

• [12] Westpac has a policy called the Hybrid Working Model (Policy) which provides for a mix of in-person and remote work. Westpac's Policy requires employees, including the applicant, to attend a corporate office 2 days each week. The closest corporate offices to the applicant's residence are Kogarah and Parramatta. It takes approximately 2 hours to travel from the applicant's children's school to either of those locations.

• [13] In December 2024 the applicant sought approval to work at the Bowral branch for 2 days per week instead of attending the corporate office. This request was approved by Mr. Brand (acting Senior Operations Manager). Mr. Brand described the approval as a short-term 'olive branch' to assist with the applicant's transition to in-office work. However, in January 2025 Mr. Potts (Senior Operations Manager) returned from leave and reversed the decision.

• [14] As is mentioned above, the applicant then made a formal FWA request under s.65 of the Act on 17 January 2025. On 18 March 2025 Ms. Foote (Team Leader) conveyed to the applicant that Mr. Potts had refused the request. No reasons were provided for the refusal at that point. The applicant asked that reasons be provided on the same day. On 19 March 2025, Mr Potts sent the applicant an email in which he referred to Westpac's remote working policy and said that 'working from home is no substitution for childcare' and 'your arrangements for working remotely may change at any time at Westpac's discretion.'

• [15] On 14 April 2025 Ms. Higgins (Executive Manager) wrote to the Finance Sector Union (FSU) as the applicant's representative, seeking further information about the applicant's circumstances and proposing a phased return to office work. Further exchanges followed in which the parties put alternative proposals, including a proposal from the respondent that the applicant work one day per week in a corporate office and one day per week in a branch. By 30 May 2025 Westpac's position was that Ms. Chandler should be required to undertake a phased return to 2 days per week at a corporate office by January 2026.

• [16] Section 65A of the Act provides, relevantly, as follows:

65A Responding to requests for flexible working arrangements

1. If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.

a) state that the employer grants the request; or > > b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee's working arrangements that differs from that set out in the request - set out the agreed change; or > > c) subject to subsection (3) - state that the employer refuses the request and include the matters required by subsection (6).

a) the employer has: > > 1. discussed the request with the employee; and > 2. genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements to accommodate the circumstances mentioned in subsection (1); and > > b) the employer and the employee have not reached such an agreement; and > > c) the employer has had regard to the consequences of the refusal for the employee; and > > d) the refusal is on reasonable business grounds.

Note: An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).

1. To avoid doubt, subparagraph (3)(a)(ii) 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.

Reasonable business grounds for refusing requests

1. 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.

Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

1. If the employer refuses the request, the written response under subsection (1) must:

a) include details of the reasons for the refusal; and

b) without limiting paragraph (a) of this subsection:

1. set out the employer's particular business grounds for refusing the request; and
2. explain how those grounds apply to the request; and

1. either:
   1. set out the changes (other than the requested change) in the employee's working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or
   2. state that there are no such changes; and

• [17] Westpac conceded that it did not provide a response to Ms. Chandler's FWA request within 21 days of the request, as required by s.65A(1). It is also clear that no reasons were provided with the initial written refusal given on 18 March 2025. The reasons that were ultimately provided after the applicant requested reasons were cursory at best. Brief reference was made to Westpac's Policy in that response.

• [18] There is also little doubt on the evidence that in dealing with the applicant's FWA request Westpac did not engage with a number of the mandatory requirements set out in s.65A of the Act. In particular, Mr. Potts did not discuss the request with the applicant or genuinely try to reach agreement with the applicant about making changes to the applicant's working arrangements.[2] Nor was there any evidence to suggest that Mr. Potts had regard to the consequences of the refusal for the applicant.[3]

• [19] Aside from a brief reference to the Policy in the response, there was no attempt to describe the particular business grounds for the refusal or how those grounds applied to the request.[4] The response did not set out the changes to working arrangements that would accommodate the applicant's circumstances that Westpac would be willing to make or state that there were no such changes,[5] or the effect of s.65B and 65C.[6]

• [20] The applicant also submitted that there were no reasonable business grounds for refusing the request.[7]

• [21] The applicant submitted that the shortcomings with the process and the refusal were fatal to the respondent's right to refuse the request. It followed, according to the applicant, that since the respondent was not entitled to refuse the FWA request, the application should be granted. Reliance for that submission was placed on the decision of the Full Bench in Naden v. Catholic Schools Broken Bay Ltd as Trustee for the Catholic Schools Broken Bay Trust[8] (Naden). In that case the Full Bench was dealing with an appeal against a decision to refuse to disturb a decision by an employer to refuse a flexible work request which had been referred to the Commission under the dispute settlement provisions of an agreement that applied to the parties. The Full Bench concluded that the employer was not entitled to refuse the request under s.65A of the Act and was required to implement the flexible work arrangement in accordance with the employee's request. The Full Bench said:

[47] The respondent, in refusing the request, was required to have regard to the consequences of a refusal for Ms Naden. 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.

[48] ..... 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 s65A(1) cannot be understated.

[49] In this case the written response provides no reference to the consequences of the refusal for Ms Naden or any details of how regard was had to the consequences for Ms Naden 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 Ms Naden. Consequently, the requirement in s 65A(3)(c) to consider the consequences of the refusal was not met.

[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.

• [22] The respondent submitted that any non-compliance with the requirements of the Act could be pursued in the ordinary way as a non-compliance issue but was 'not a matter of determination of the right of the employer to resist the application that's been made to the Commission here.'[9] The respondent referred to the decision of Sloan C in Louise v. Metcash Trading Ltd [10] (Metcash). In that decision, the Commissioner placed reliance on the Full Bench decision in Ridings v. Fedex Express Australia Pty Ltd t/a Fedex[11] (Fedex). In Metcash, the Commissioner distinguished the circumstances in Naden as involving a determination under the provisions of the dispute settlement clause in an agreement as opposed to an arbitration under s.65C. The Commissioner concluded that the employer did not have reasonable business grounds to refuse the request and that this supported the making of an order.[12] The Commissioner went on to cite the following passage from Fedex before ultimately granting the order sought by the employee:

[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.

1. For the purposes of paragraph 65B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

a) if the employer has not given the employee a written response to the request under section 65A - an order that the employer be taken to have refused the request;

b) if the employer refused the request:

1. an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or
2. an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

e) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee's request under section 65A - an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;

f) subject to subsection (3) of this section:

1. an order that the employer grant the request; or
2. an order that the employer make specified changes (other than the requested changes) in the employee's working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a).

Note: An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee's request, and could set out matters that must be included in the response or further response.

1. In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.

2A) The FWC must not make an order under paragraph (1)(e) or (f) that would be inconsistent with:

a) a provision of this Act; or

b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

1. The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

1. If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.

1. If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:

a) for an order made under subparagraph (1)(b)(i) - to be reasonable business grounds; or > > b) for an order made under subparagraph (1)(b)(ii) - not to be reasonable business grounds.

1. A person must not contravene a term of an order made under subsection (1).

Note: This subsection is a civil remedy provision (see Part 4‑1).

• [24] It is true, as the respondent accepted, that the failure to comply with the requirements of s.65A by the respondent may give rise to contravention proceedings. Section 44 is a civil remedy provision which provides that an employer must not contravene a provision of the National Employments Standards (NES). Section 65A forms part of the NES. However, these proceedings do not (and could not, given the limitations on the Commission's jurisdiction) involve an application for a civil penalty for alleged non-compliance on the part of the employer.

• [25] The current matter involves the exercise of an arbitration power conferred by statute. The exercise of that power involves, as the Full Bench in Fedex identified, the exercise of a discretion. So much is clear from the requirement in s.65C(2) for the Commission to take into account fairness between the parties in the making of any order under s.65C(1). It may also be accepted that because the making of an order under s.65C involves, to some extent, the exercise of a discretion, a finding that an employer's refusal was not supported by reasonable business grounds does not, as the Full Bench in Fedex put it, compel an order to be made that was consistent with any finding in relation the refusal. There may, for example, be countervailing fairness reasons why another form of permissible order should be made, notwithstanding a finding that there were no reasonable business grounds for the refusal.

• [26] Section 65C only permits the making of the orders specified in s.65C(1) in the arbitrated settlement of the dispute that is being dealt with by the Commission. The orders available contemplate different circumstances which may arise at different stages of a dispute. An order under s.65C(1)(a) for example, is directed to the circumstance in which an employer has not responded in writing to an employee request. An order under s.65C(1)(e) is directed to a situation where the Commission is satisfied that either the employer has not responded or has not responded adequately to an employee request under s.65A and provides scope for the Commission to frame an order in terms designed to address that situation and thereby seek to resolve the dispute.[13] Unlike other available orders, an order under s.65C(1)(f) can only be made where the Commission is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order. Subject to that proviso and the requirements of s.65C(2A) discussed below, the Commission may make an order that the request be granted. The Commission also has the latitude to make an order that other specified changes be made to the employee's working arrangements to accommodate the matters in s.65B(1)(a).

• [27] I accept that there may be circumstances in which different considerations arise depending on how a dispute about flexible working arrangements is brought before the Commission. In Naden, the Full Bench and the Commission at first instance were dealing with an application to deal with a dispute under the dispute resolution terms of an agreement and not an arbitration under s.65C. In that situation the terms of the agreement itself are likely to be central to the framing of the dispute to be resolved and the terms on which the Commission resolves the dispute. The Full Bench in Naden pointed out that the dispute in that matter could be characterised under the dispute resolution clause of the agreement as either a dispute about a matter arising under the NES or a dispute about a matter arising under the agreement, given the NES provisions were incorporated as a term of the agreement.[14] The Full Bench also made reference to the fact that the dispute notification in that matter specifically sought a determination in relation to whether the employer complied with its obligations under the agreement and the NES.[15]

• [28] It is also clear in the Naden decision that the parties were at odds as to the scope of the Commission's capacity to arbitrate the dispute. The union contended that the relevant dispute resolution clause placed no restriction on the Commission's ability to arbitrate, whereas the employer argued that the Commission's powers were limited by the powers set out in the Act and that the arbitration should deal with the substance of the refusal being whether there were reasonable business reasons.[16] It is of course possible that the parties to an agreement may, through the terms of a dispute resolution clause, agree to confer on a third party private arbitrator the power to make orders in terms and/or in circumstances beyond those provided for in s.65C. In Naden, clause 10 of the agreement incorporated the terms of the NES, including s.65C, relating to flexible working arrangements. The relevant term dispute settlement term also permitted the Commission to arbitrate the dispute and make 'a determination' that is binding on the parties. In my view, the consideration of the importance of meeting the requirements in s.65A discussed in Naden remains clearly relevant to an arbitration under s.65C. Central to that consideration is the text of s.65A(3) and the requirement that the employer may refuse the request 'only if' all four requirements of s.65A(3) are met.[17] The requirements in that subsection are cumulative.[18] The decision in Naden also makes clear that a focus on the 'reasonable business grounds' aspect and a failure to appreciate the significance of meeting the other requirements in s.65A(3) can result in a failure to take into account a relevant consideration in the resolution of the dispute.[19]

• [29] I accept the applicant's submission that the evidence shows that the refusal of the request preceded any dialogue between the parties about the request and it was only after the applicant escalated the matter that Westpac began to discuss potential compromises to the request. The structure, text and evident purpose of s.65A(3) indicate that matters referred to in the subsections (a) and (b) should pre-date the refusal. There should be consultation and a genuine but unsuccessful attempt to reach an agreement after the request and before the refusal. Here the refusal came on 18 March 2025, and discussions occurred afterwards. That is not consistent with the requirements of s.65A(3)(a) and (b). In any event, I am not satisfied that the discussions that post-dated the refusal involved the employer genuinely trying to reach an agreement to accommodate the applicant's circumstances. Despite the compromise offer that was put by Ms. Higgins involving the applicant working at a branch, the respondent reverted to a position that was ultimately less favourable to the applicant than the compromise position. In coming to that view, I note that s.65A(3)(a)(ii) does not require the employer to agree to a change to working arrangements where there are reasonable business grounds for refusing a request.[20]

• [30] The Full Bench in Naden observed that s65A(3)(c) places a positive obligation on an employer to consider the consequences of a refusal on an employee and that such consideration would be discussed and included in the written reasons for refusal required by s.65A(1).[21] The written refusal makes no mention of the respondent having regard to the consequences of the refusal for the employee. There is no other basis in the evidence to conclude that Westpac had regard to the consequences of the refusal at the time the decision to refuse was made.

• [31] I conclude that the respondent did not meet the requirements of s.65A(3)(a), (b) and (c). These failures should be taken into account in the exercise of the Commission's discretion under s.65C. Consideration also needs to be given to the issue of whether there were reasonable business grounds for the refusal. It is to that matter that I now turn.

• [32] The respondent relied substantially on ss.65A(5)(d) and (e) to submit that there were reasonable business grounds for refusing the request. Those subsections refer to the requested arrangements being likely to result in a significant loss in efficiency and productivity or having a significant negative impact on customer service.

• [33] Westpac stressed the importance of its Policy as a measured approach that provided for a mixture of in-person and remote work and enabled it to effectively manage this issue amongst its very large workforce. They submitted that it was appropriate to seek to maintain minimum office attendance unless an employee falls within one of the noted exceptions in the Policy. It was also submitted that there were a number of important benefits associated with the proposed minimum periods of corporate office attendance. Ms. Higgins gave evidence about the benefits of attendance in fostering collaboration in the applicant's immediate team and meaningful engagement with stakeholders and other people across the broader Mortgage Operations business.

• [34] There was further evidence as to the benefits of physical presence in the office as assisting centralised operational processes such as document processing and more effective team communication. Ms. Higgins also gave evidence about the various methods used by Westpac help team members retain a customer focus. These included team 'huddles' and activities, training sessions and the use of 'call boards' at the corporate premises which convey key messages to staff and which are not accessible to employees working from home. Ms. Higgins also gave detailed evidence as to why working from the Bowral branch was not a suitable substitute for working at the corporate office. The respondent accepted that it was not mandatory for an individual to be in office to achieve a particular work function but rather that the ability of teams to work effectively with each other was much greater if there was a certain level of office attendance and face-to-face interaction.[22]

• [35] The applicant maintained that there were no reasonable business grounds for refusing the request. The applicant said that contrary to Westpac's assertion, access to on-site cheque printing facilities was not critical to the applicant's essential responsibilities. The applicant submitted that team collaboration was unlikely to be adversely affected in circumstances where the applicant's team is constructed in such a way that face-to-face contact was not an ordinary part of the job. The applicant said that her team was a remote and flexible team that clearly functioned well without the need for ongoing in-person attendance. The applicant referred to another member of her team with a remote working arrangement and the reduced capacity for the team member based in Parramatta to collaborate with work colleagues in Kogarah, Tasmania or the 7 members of the broader team based in South Australia. The applicant pointed out that the respondent's own Policy specifically countenanced attendance at a Branch or other Westpac workplace as means of meeting minimum office expectations.

• [36] The applicant properly conceded that there were some benefits that would attach to in-person attendance and face-to-face interaction. However, the evidence as to the benefits was generalised and to the extent that specific examples were relied upon these were in my view, insufficient to establish reasonable business grounds. For example, the evidence shows that team 'huddles' can be and are conducted by Microsoft Teams and that training sessions are available on-line. Ad hoc social activities are often held interstate with only four larger scale events in 2025 being held at Parramatta. The supposed reduction in the applicant's capacity to mentor other staff if she does not attend the office is tempered by the fact that the applicant only ever mentors new team members of which there are currently none, has successfully trained two employees remotely during the pandemic, has informally assisted employees via Teams[23] and has not mentored anyone since around 2022. The respondent made no attempt to quantify any supposed losses or negative impact and to the extent such losses arise, I am not persuaded that they rise to the level of 'significant' in this case.

• [37] Further, there is no question that Ms Chandler's work can be performed completely remotely. She has been working remotely for a number of years and doing so very successfully. The evidence confirms that both Ms. Chandler and her team have performed at a very high level. Deadlines have been met or exceeded. Ms. Chandler's individual performance ratings are high. A loss of productivity or efficiency or a negative impact on customer service has not materialised as a consequence of the existing remote working arrangements. It is unlikely in my view that a continuation of those arrangements would generate those sorts of adverse results.

• [38] Having considered the evidence and submissions and noting that the list of reasonable business grounds in s.65C(5) is non-exhaustive, I have come to the view that the evidence here does not establish that there were reasonable business grounds for the refusal.

• [39] The respondent argued that it would be unfair as between the parties to make the order sought because it would relieve Ms. Chandler of a requirement that applies to all other Westpac employees in circumstances where that relief is not supported by reasonable business grounds and doing so would undermine the ability of Westpac to insist on compliance with those requirements by other employees. It was also put by the respondent that the present circumstances had arisen because of life choices and preferences of the applicant and without the imprimatur of Westpac. In that case it was said that it would be unfair if the respondent's position had to yield simply because of personal decisions of the applicant, such as the location of the family home and the school that the applicant had chosen for her children. The respondent also contended that the evidence established that the applicant's partner was capable of playing a larger role in the care of the children and that the financial position of the family was improving to the point where it was not unfair or unreasonable to expect that the additional cost of child care be borne by the applicant rather than requiring Westpac to adjust its working arrangements and make an exception to its policy.

• [40] The applicant submitted that Westpac would suffer no real detriment if the application were to succeed. The applicant said that the imposition on the respondent rose no higher than not having face-to-face interaction in circumstances where the overwhelming majority of the Spider Team's interaction occurred online which was itself a necessary by-product of a team structure based in different states. In contrast the applicant said there would be significant personal prejudice to the applicant if the refusal were upheld. This would include financial consequences to the applicant and her family. The applicant said in her evidence that she would have to consider her future at Westpac if the application did not succeed.

• [41] I accept that the present circumstances arise at least in part and within the usual economic constraints that apply to the choices that every person makes, because the applicant decided to move to her present location and send her children to the school of her choosing. Further, I do not think the evidence demonstrates that Ms. Chandler obtained any assurances from Westpac that it would accommodate Ms. Chandler's choice of residence indefinitely through remote working arrangements. However, Westpac has permitted remote working arrangements for Ms. Chandler over an extended period.

• [42] I do not think that the evidence supports the view that the applicant's partner could realistically play a greater role in the arrangements for before and after school care. The applicant's partner's work is done in-store at various locations. He is unable to work remotely. There is no regularity or predictability to the amount of interstate work required of the applicant's partner. When he works in the Sydney area he leaves home at 4.30am and does not return until 6 or 6.30pm. The applicant's partner presently works 6 days per week, including Sundays. To assist with school arrangements, the applicant's partner would be required to take a day or days off work between Monday to Friday and work both Saturday and Sunday. I have also taken into account the financial circumstances of the applicant, including the additional costs of before and after school care. I also note that the overwhelming majority of the applicant's Team's interactions occur online. The Team has been structured in that way and functions very effectively remotely across various physical locations. Whilst I accept that Westpac may obtain some benefit from minimal levels of in-office attendance in Ms. Chandler's case, I also think that the consequences of not making an order are seriously prejudicial for the applicant and her family. On balance, having considered the evidence in its totality, I am of the view that fairness considerations weigh in favour of the making of an order.

Inconsistency with the Westpac Agreement - s.65C(2A)

• [43] Clause 19 and 20 of the Westpac Agreement provide, relevantly, as follows:

You may request or we may require you to work a mixture of your time at our office and away from our office (which could include your home or another location). Your request must be approved by us.

We call employees who work in this way, 'hybrid workers'. If you are a hybrid worker, you and we have a responsibility for ensuring your health, safety and wellbeing while you are working away from our office.

As a hybrid worker, the location of your role will not change and will remain at our office. You must be available to attend our office as required.

We may agree with you that you can perform work from a home office as a home

based worker. As a home based worker, the location of your role will be your home office.

If you are a home based worker, we'll also let you know:

• the work related technology and other equipment that we'll provide (or fund) for your home office;
• how we can both ensure your health, safety, wellbeing and security while you are working from your home office; and
• the work expenses that may be incurred by you that we'll reimburse.

In considering whether or not you may work away from our office as a hybrid worker or home based worker we will take into account a range of things including the nature of your role, the level of support and supervision you require, the technology you need for your role, the arrangements you or we propose and your performance. The arrangement must meet the requirements of the business and our customers.

We may cease or change your hybrid or home based working arrangements with

If we allow you to work away from our office (either at a home office or other location) you must be available to perform work, or attend work related meetings or training or other work related activity, at our offices as required from time to time. We will give you reasonable notice if you are required to attend our offices.

Under the National Employment Standards, you may be able to apply for a flexible working arrangement.

If you are interested in a flexible working arrangement, speak to your manager. Any request to work a flexible working arrangement under clause 20.1 will be considered in accordance with the National Employment Standards.

If you have a concern about a matter arising under this clause, you can progress it under clause 40 (dispute resolution) or (depending on the nature of your concern) under the dispute provisions in the National Employment Standards.

• [44] Although the parties did not refer to it, it is also relevant to note the provisions of clause 48.2 of the Westpac Agreement which provides:

Our Agreement will not operate to exclude any provision of the National Employment Standards.

• [45] Westpac submitted that an order in either of the terms sought by the applicant would be inconsistent with the Westpac Agreement and that s.65C(2A)(b) prevented the making of such an order under s.65A(1)(f). In particular, Westpac referred to, amongst others, the requirement that a hybrid employee work a mixture of their time at the office and away from the office (cl 19.1), the requirement that a hybrid worker be available to attend the office as required (cl 19.1), the requirement that the hybrid arrangement meet the requirements of the business and Westpac's customers (cl 19.3), the capacity for Westpac to cease of change hybrid working arrangements on reasonable notice (cl 19.3) and the requirement to attend the offices as required (cl 19.4). In closing submissions, it was argued by Westpac that s.65C(2A) 'itself reduces the scope of the National Employment Standards such that the orders that the Commission can make pursuant to this particular element of the National Employment Standards are limited in such a way that they don't achieve or result in inconsistency'.[24]

• [46] The applicant submitted that Westpac's argument ignored the operation of clause 20 of the Westpac Agreement. It was also submitted that the right to request a FWA was a minimum employee entitlement under the National Employment Standards (NES) and that a term of an enterprise agreement could not exclude a provision of the NES.[25] The applicant said that an enterprise agreement may provide for terms that are ancillary, incidental or supplementary to an entitlement under the NES, but only to the extent that such terms are not detrimental to an employee.[26] Further, the applicant pointed out that terms of an agreement were, by operation of s.56, of no effect to the extent that they contravene s.55. The applicant submitted that to the extent that Westpac contended that clause 19 of the Westpac Agreement is inconsistent with the FWA request, the clause contravenes s.55 because it was detrimental to the applicant and therefore had no effect.

• [47] The applicant also pointed to the Revised Explanatory Memorandum to the Fair Work Legislation (Secure Jobs, Better Pay) Bill 2022 (SJBP Bill) in support of its construction of s.65C(2A).

638. New subsection 65C(2A) would clarify that the FWC cannot make an order:

• to ensure compliance with the procedural requirements in new section 65A (proposed new subparagraph 65C(1)(e))
• that an employer grant a request for flexible working arrangements (proposed new subparagraph 65C(1)(f)(i)), or
• that an employer make specified changes to an employee's working arrangements to accommodate their circumstances (proposed new subparagraph 65C(1)(f)(ii)),

that would be inconsistent with a provision of the FW Act or a fair work instrument that applies to the employee and employer (other than a previous order made by the FWC under these provisions). This amendment is modelled on existing subsection 739(5), which applies to FWC consent arbitration.

639. One situation in which this may arise is where a fair work instrument provides for rates of pay, penalty rates or other conditions that apply to certain patterns of work. An order of the FWC may not be inconsistent with or less favourable than those provisions.

• [48] After the hearing had concluded, the Full Bench of the Commission handed down its decision in the matter of Paper Australia Pty Ltd trading as Opal Australia Paper v. May [2025] FWCFB 224 (Paper Australia). Both parties filed brief written submissions as to the significance of that decision to the determination of the inconsistency question in this case.

• [49] The circumstances confronting the Full Bench in Paper Australia were, briefly, as follows. An employee had made a request for a flexible working arrangement under s.65(1) which involved a change to his working hours to accommodate his carer's responsibilities. The request was refused on the basis that the terms of the agreement that covered and applied to the parties did not permit the change that was sought and that this provided 'reasonable business grounds' to refuse the request.

• [50] At first instance the Commission concluded that inconsistency between the terms of the agreement and the requested arrangement could not be relied upon as a reasonable business ground for refusing the request for the purposes of s.65A. The Commission also concluded that s.65C(2A)(b) did not preclude the making of an order under s.65C(1)(f)(i) granting the employee's request. The Commissioner concluded that the NES precedence clause in the agreement and s.55 of the Act operated such that any express limitation on granting a FWA in the agreement was overridden.

• [51] The employer advanced three grounds of appeal. The first was that the Commission had erred by concluding that a proposed FWA's inconsistency with an agreement cannot be a reasonable business ground for refusing a flexible work request. The second was that the Commission erred by concluding that the agreement clause limited an employee's entitlement to a legislative minimum standard and that the clause was of no effect by virtue of the operation of s.55 of the Act and the NES precedence clause. The third ground was that the Commission erred by concluding that s.65C(2A)(b) did not prevent the making of an order that was inconsistent with the relevant clause of the agreement. The Full Bench dealt with the first two grounds of appeal together and the third ground separately. All three grounds were rejected and the appeal was dismissed.

• [52] In rejecting grounds one and two of the appeal the Full Bench said:

[58] The clear legislative purpose embodied in s 61(1) is that the National Employment Standards are minimum standards to which all employees are entitled. Those minimum standards sit at the pinnacle of the hierarchy of terms and conditions under the Act. Those standards cannot be excluded or displaced by an instrument such as an enterprise agreement. A provision of the National Employment Standards will be excluded or displaced if an enterprise agreement term has a detrimental effect on the right conferred under the National Employment Standards. If an enterprise agreement were permitted to have a detrimental effect on a provision in the National Employment Standards, the hierarchy of the sources of terms and conditions conferred by the Act, with the National Employments Standards at the peak, would be inverted. This proposition is subject to s 55(2)-(7). Section 55(2)-(7) prescribe a detailed scheme as to how an enterprise agreement may affect the National Employment Standards. We have set out those provisions in paragraph [29] above. The detailed provisions in s 55(2)-(7) evince an intention that an enterprise agreement cannot affect the operation of the National Employment Standards except as expressly permitted by those sub-sections and certainly cannot detrimentally affect the operation of an employee right in the National Employment Standards, except as permitted by those sub-sections.

• [53] At [63] the Full Bench concluded as follows:

...In our view, a term of an enterprise agreement will exclude or displace the right conferred by s 65(1), when read with s 65A, if it would permit an employer to refuse a request for a change to working arrangements other than on reasonable business grounds. A term of the Maryvale Agreement which had that effect would also give rise to an inconsistency with the National Employment Standards for the purposes of clause 2.3 of that Agreement. ... The effect of ss 56 and 61(1) is that clause 18 has no effect to the extent that it would permit Paper Australia to refuse Mr May's request to change his working arrangements other than on reasonable business grounds. The consequence is that Paper Australia would not contravene the Maryvale Agreement by granting Mr May's request notwithstanding the terms of clause 18.

• [54] Significantly, the Full Bench also dealt with an argument advanced by the appellant that the existence of s.65C(2A)(b) contemplates that a term of an enterprise agreement might operate to limit the range of permissible FWAs. At [73] the Full Bench said:

We do not consider that s 65C(2A)(b) assists in construing ss 65 and 65A or in assessing the interaction between those sections and an enterprise agreement. Section 65C(2A)(b) is directed at the orders able to be made by the Commission when arbitrating a dispute under s 65C and not the scope of a request able to be made by an employee under s 65(1) or the circumstances in which such a request may be refused. Section 65C(2A) was introduced by the SJBP Act in 2022 whereas the capacity of an employee to request a change to their working arrangements has been a part of the Act since its commencement in 2009. There is nothing to suggest that the 2022 amendments were intended to alter the nature of the reasonable business grounds that justify refusal of a request for changes to working arrangements previously contained in s 65(5) and (5A). Furthermore, to the extent that the Commission makes an order under s 65C(1)(f)(i) that the employer grant a request, analysis of whether the order would be inconsistent with a fair work instrument for the purposes of s 65C(2A)(b) must be assessed after the application of ss 55(1), 56 and 61(1) of the Act to determine the true operation of the relevant instrument and not independently of that assessment. (footnote omitted)

• [55] In relation to the third ground of appeal the Full Bench said:

[81] Section 65C(2A) relevantly constitutes a prohibition on the making of an order that would be inconsistent with a term of an enterprise agreement. It is apparent that the inconsistency can only be with a term that has operative effect in the relevant circumstance. A term in an enterprise agreement which has no effect in the relevant circumstance, cannot engage the prohibition in s 65C(2A). As we have set out in our reasons in relation to grounds 1 and 2, if a term of an enterprise agreement detrimentally constrains a right conferred by a provision of the National Employment Standards, it has no effect to the extent that it does so, except to the extent that it is permitted to do so by s 55(2)-(7). This is so because of the operation of ss 55(1), 56 and 61(1) of the Act and also, in this case, as a result of the operation of clause 2.3 of the Maryvale Agreement.

[82] In our view, by mandating a particular roster which could only by varied by agreement of the parties or relevant employees and that the ordinary hours of employees be worked only in the defined pattern, clause 18 of the Maryvale Agreement detrimentally constrained Mr May's right to have his request refused only on reasonable business grounds. The only ground relied on by Paper Australia to refuse the request was compliance with clause 18 and it did not rely on any underlying reason relating to cost, productivity or efficiency. To the extent that clause 18 of the Maryvale Agreement required Paper Australia to refuse Mr May's request without there being reasonable business grounds for doing so, it was of no effect by operation of ss 55(1), 56 and 61(1) of the Act. The prohibition in s 65C(2A) was not engaged. For the reasons we have explained, the order made by the Commissioner was not inconsistent with the

Maryvale Agreement once the effect of ss 55(1), 56 and 61(1) is properly understood. The Commissioner was, in the circumstances, entitled to make an order that Paper Australia grant Mr May's flexible work request.

• [56] In contrast to the circumstances in Paper Australia, Westpac does not assert here that the refusal was based on an inconsistency with a term of an agreement, but rather that there were reasonable business grounds, related to the impact of the proposed FWA on the business and unrelated to the terms of the Westpac Agreement, which formed the basis of the refusal. Instead, the argument that was put was that if the Commission decided to make an order under s.65C(1)(f), the terms of any orders that the Commission may make are constrained by the operation of s.65C(2A)(b). Westpac said that the prohibition in s. 65C(2A) was not enlivened in Paper Australia because the Full Bench had concluded that the terms of the agreement in question were of no effect because of the operation of ss 55(1), 56 and 61(1). In that case the question of inconsistency simply did not arise.

• [57] In the written submissions filed after the hearing, Westpac contended that if the Commission determined to make any order that was different to what is requested, then the order must be consistent with the relevant terms of the Westpac Agreement.[27] In subsequent submissions it was put that if the Commission determined that it was appropriate to order a form of FWA to operate in respect of Ms. Chandler, then the FWA must be consistent with clause 19 of the Westpac Agreement.[28] In this respect I note that to the extent it is applicable in particular circumstances, s.65C(2A) applies to 'an order' made under paragraphs (1)(e) or (f) of s.65C. That is, the subsection applies to orders whether they be under s.65C(1)(f)(i) that the request be granted, or under s.65C(1)(f)(ii) that some other form of arrangement be made to accommodate the circumstances in s. 65B(1)(a).

• [58] In my view the respondent's argument that s.65C(2A) restricts the capacity of the Commission to make an order other than one which is consistent with the terms of clause 19 of the Westpac Agreement, that is, an order which requires, at least, a mix of working time at and away from the office and being available to attend the office as required, must be rejected. This is because even if clause 19 applies to the full extent of it terms and is not rendered inoperative by s.55, s.56 and s.61(1) in the way in which the relevant clause in Paper Australia was, there is simply no inconsistency between the terms of the Westpac Agreement and the order sought.

• [59] Clause 19 provides for a particular process by which employees can work away from Westpac's office, either as a hybrid worker or a home-based worker. It is separate and in addition to the rights and obligations imposed on the parties by clause 20 which deals with flexible work arrangements. Ms. Chandler does not, by this application, seek to engage with the processes of clause 19. Any limitations that clause 19 imposes on hybrid or home-based workers do not apply to an employee who has invoked the processes for a FWA that the Act, and Agreement itself, at clause 20, provides for.

• [60] Westpac accepted that clause 20 of the Westpac Agreement specifically recognises the rights of employees to make a request for an FWA and have the request considered in accordance with the NES.[29] Clause 20.2 provides that any request under clause 20.1 will be considered in accordance with the NES. Clause 20.3 provides that a dispute about a matter arising under clause 20 can be progressed under the dispute resolution clause of the agreement or the dispute provisions in the NES. It is precisely those processes which are being activated in this application. Moreover, clause 48.2 of the Westpac Agreement provides that the Agreement will not operate to exclude any provision of the NES. Clause 19 must be read in this context. It does not purport to, nor could it, even under the terms of the Agreement itself, exclude an employee's rights under the NES. The requirements imposed by clause 19 relate to circumstances in which the substantive provisions of that clause are engaged. They do not relate to a FWA request and do not constrain the terms of the proposed order. Westpac appeared to acknowledge the separateness of the two processes in its written submission of 13 October 2025:

The right of Ms Chandler and other Westpac employees to make a flexible work request and Westpac's obligation to consider and determine that application is not limited (either expressly or by implication) by the features of the arrangements that are set out in clause 19 (ie employees can (as Ms Chandler did) make a request for a flexible work arrangement that does not conform to all of the features of these arrangements as specified in clause 19, and Westpac can (as it did in earlier periods with Ms Chandler) agree to arrangements that do not conform to all of those features.

• [61] I do not consider that an order that the respondent grants the FWA request under s.65C(1)(f)(i) would be inconsistent with the terms of the Westpac Agreement for the purposes of s.65C(2A)(b). I am satisfied that there is no reasonable prospect of the dispute being resolved without the making of an order under s.65C(1)(f)(i).[30] I propose to make an order in resolution of the dispute. The order will be published separately and will accompany this decision.

[1] Applicant's Outline of Submissions, paragraph [6].

[8] [2025] FWCFB 82.

[10] [2025] FWC 2090.

[11] [2024] FWCFB 473.

[13] See Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 Supplementary Explanatory Memorandum at 13-15.

[18] Paper Australia Pty Ltd trading as Opal Australia Paper v. May [2025] FWCFB 224 at [39].

[27] Submissions, 3 October 2025, paragraphs [3b] and [6].

[28] Submissions, 13 October 2025 at [20].

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