Fair Work Act 2009

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 - no "refusal" of flexible working arrangement request - arrangement granted and subsequently terminated - jurisdiction under s.65B to deal with dispute not enlivened - application dismissed under s.587

• [1] On 3 March 2025, Ms Kelly Foster (the Applicant) made an application to the Fair Work Commission (the Commission) under s.65B of the Fair Work Act 2009 (Cth) (the Act) seeking to resolve a dispute regarding a flexible working arrangement with National Australia Bank (the Respondent).

• [2] The Application notes that the Applicant applied for a flexible working arrangement (FWA) on 2 December 2024. The Applicant provided a copy of the original FWA request, made through the Respondent's internal system, and submitted to the Applicant's People Leader. I note that the FWA request form is electronically signed by the Applicant's People Leader on 11 November 2024 and by the Applicant on 12 November 2024.

• [3] The request was for the Applicant to attend her local branch for work one day a week and to attend the Brisbane office once a month. For the balance of the month, the Applicant requested to work from home.

• [4] The FWA request was made on two bases, outlined in the initial request form. The Applicant has an "informally medically assessed mental illness", which I take to mean that the Applicant's mental illness is not formally diagnosed. Secondly, the Applicant is primary carer to her school-aged daughter who has been diagnosed with a mental illness.

• [5] The document notes that the arrangement is to last for twelve months, from 2 December 2024 to 1 December 2025. The document provides a section for the People Leader to provide comments. The comments provided by the People Leader are supportive of the request. For example, it is stated: "There is no impact to the business, in fact, allowing Kelly to work from home allows her to focus and complete her work in a more efficient manner, than in a busy office environment."

• [6] According to NAB, the arrangement was approved by the Applicant's People Leader on 19 December 2024. The Applicant states that the arrangement was approved in January 2025, after she returned from leave. I prefer the evidence of the Respondent but the disagreement on this point is immaterial as, significantly, both parties agree that the request was responded to and was approved. There is no evidence before me that the Respondent failed to respond in writing within 21 days.

• [7] On 26 February 2025, the Applicant was advised by Ms Kristina Mitrovic, Lead, Dedicated Servicing Team, for the Respondent that the FWA was terminated. Apparently the Respondent had generated a report of the swipes of the Applicant's key card at the Brisbane office. The words used by Ms Mitrovic were as follows:

The below report has shown that you have not been attending the Brisbane office as per your FWR, therefore the request for once a month has been declined and we will require you to attend the Brisbane office once a week, any day that is convenient for you and when your colleagues also attend.

• [8] The phrasing of "the request for once a month has been declined" is confusing, given the FWA request had already been approved for twelve months. However, the Applicant understood this to be a termination of the existing arrangement. She described it is as such in her application. The Respondent has subsequently also argued that this email terminated the FWA. I agree that the email is a termination of an existing arrangement, because of alleged non-compliance with the terms of that arrangement. There was no outstanding request for the Respondent to decline. There was only an existing arrangement which could be terminated.

• [9] Upon reviewing the email from Ms Mitrovic, which was not provided with the original application, together with the Form F10A, I informed the parties that I believed the matter fell beyond the jurisdiction of s.65B and should be dismissed, as there has been no failure to respond within 21 days and no refusal of a FWA request, only termination of an existing agreement. I invited the parties to provide submissions on this point by close of business, 2 April 2025. The Respondent provided submissions stating that the application should be dismissed. The Applicant did not provide any submissions and has not further corresponded with Chambers.

• [10] Section 587 of the Act provides:

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

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

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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 - 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [11] Section 65 of the Act provides as follows:

Employee may request change in working arrangements

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work

• [12] The employer can only refuse request if the following criteria are met under s.65A of the Act.

65A Responding to requests for flexible working arrangements

(ii) 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

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).

• [13] Section 65B of the Act provides the framework under which the Commission may deal with disputes about flexible working arrangements:

65B Disputes about the operation of this Division

(1) This section applies to a dispute between an employer and an employee about the operation of this Division if:

(a) the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and

(ii) 21 days have passed since the employee made the request, and the employer has

not given the employee a written response to the request under section 65A.

Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in accordance with section 65C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

(5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

• [14] Section 65C of the Act deals with the orders that may be made by the Commission in dealing with the dispute by arbitration.

• [15] I note the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states:

Section 65B - Disputes about the operation of this Division

631. The new section 65B would empower the FWC to resolve disputes regarding the operation of Division 4 of the NES, where:

the dispute relates to a request for a flexible working arrangement (new paragraph 65B(1)(a)); and

• the employer has refused the request (new subparagraph 65B(1)(b)(i)); or
• 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under new section 65A (new subparagraph 65B(1)(b)(ii)).

632. Similar to other dispute resolution provisions in the FW Act, a party may refer a dispute to the FWC under new section 65B where:

• the parties to the disputes have attempted to resolve the dispute by discussions at the workplace level (new subsection 65B(2)); and
• discussions at the workplace level have not resolved the dispute (new subsection 65B(3)).

• [16] The prerequisites for a flexible working arrangement request dispute are set out in clearly in Quirke v BSR Australia Ltd [2023] FWCFB 209 ("Quirke").

• [17] Relevantly, the Full Bench stated the following in Quirke:

[21] Section 65B(1) relevantly provides that s 65B applies to a dispute between an employer and an employee if, first, the dispute relates to 'a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee and, second, the employer has either refused the request or has not given the employee a written response under s 65A within 21 days. Thus, to the extent that s 65B(3) permits a dispute to be referred to the Commission and s 65B(4) empowers the Commission to deal with the dispute (including, if necessary, by arbitration under s 65C), the dispute must be of the type referred to in s65B(1). Absent the existence of such a dispute, the Commission lacks jurisdiction under s 65B(4) and cannot engage in arbitration under ss65B(4)(b) and 65C. Because, as explained, the first predicate for such a dispute is that it must relate to a request by the employee under s 65A(1), then the Commission's jurisdiction is dependent on a request of that nature having been made

• [18] As the primary issue is whether there is a "refusal" for the purposes of s.65B(1)(b)(i), I need not delve into whether the Applicant meets the definition of having a "disability" if her mental illness is self-diagnosed. However, in my preliminary view, it would not meet the definition of disability for the purpose of s.65(1A) of Act.

• [19] The relevant prerequisites in contention are whether the FWA request was not responded to in writing under s.65A within 21 days, or whether it was refused. As the request was approved on 19 December 2025, and the request was made formally on 2 December 2024, there is no evidence to say that the request was not responded to for 21 days under s.65B(1)(b)(ii). The Applicant has argued that her request was instead "refused".

• [20] It is clear that the under s.65B(1)(b)(i), the refusal is linked to the FWA request made under s.65(1). The Macquarie Dictionary's definition of "refuse" is to "decline to give; deny (a request, demand, etc.)". The Respondent could not have refused a request where that request had already been granted and formalised. Therefore, there was no refusal of a FWA request so as to enliven the Commission's jurisdiction to deal with the dispute under s.65B.

• [21] I note also that it is clear that sections 65 and 65A create a right to request a flexible working arrangement. There is no positive right to have that request granted and no positive right that once granted, the arrangement should continue in perpetuity. I note also that the legislation is silent on the form in which an arrangement agreed between an employer and employee may take, with good reason. As flexible working arrangements are designed to accommodate a range of circumstances, prescriptively outlining the terms of these arrangements would inhibit the flexibility they are intended to provide. In my view, there is nothing to prevent an employer from providing that an arrangement may be terminated before its expiry date. The circumstances where it may be terminated early may include cases where the employee does not comply with the agreed terms of the arrangement.

• [22] Whether the Applicant did in fact fail to attend as prescribed in the arrangement and whether the Respondent was entitled to terminate the FWA in this case is a separate issue. The Applicant may be able to raise these issues as a grievance under a s.739 dispute.

• [23] The Applicant states in her application that she was told by the Respondent that the current arrangement only lasted three months, despite the FWA form from NAB saying it is in place for 12 months. I take this to be a reference to the last page of the NAB FWA form, where it is stated:

Once implemented, this flexible working arrangement should be reviewed at least every three (3) months to ensure it is effective and any adverse impacts on the business, customer service or employee personal needs are appropriately addressed. The colleague is responsible for initiating review discussions with their People Leader. A People Leader may elect to conduct more regular reviews at their discretion.

• [24] It is not unusual for an employer to have a policy that a flexible working arrangement should be reviewed regularly.

• [25] Lastly, I note that the Applicant is entitled to make another FWA request as the carer of a school-aged child with a diagnosed mental illness. If the Respondent refuses the request, or does not respond within writing in 21 days, then the Applicant can attempt to resolve the dispute at a workplace level and then refer the dispute to the Commission.

• [26] The prerequisites for referring a dispute to the Commission under s.65B(1)(b) have not been met and therefore, the Commission does not have jurisdiction to deal with the dispute. The application should be dismissed.

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