Fair Work Act 2009

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

Application to resolve a dispute about flexible working arrangements - s65B Fair Work Act 2009 - where applicant resigns employment prior to hearing - s.65C(3) - whether any reasonable prospect of dispute being resolved without the making of an order

• [1] The applicant in this matter Ms. Praveen Nisha (Applicant), has filed an application to the Fair Work Commission (Commission) to deal with a dispute under Division 4 of Part 2-2 of the Fair Work Act 2009 (Act). The respondent to the application is Sharp Corporation of Australia Pty Ltd (Respondent).

• [2] On 3 February 2025 the Applicant made a written request under s 65 of the Act to work from home on a full-time basis to accommodate her responsibilities as a carer. In response, the Respondent offered an arrangement to the Applicant under which the Applicant could work 5 days from home per fortnight and 5 days per fortnight in the office. The Applicant rejected that proposal. The present application is for the Commission to make an order that the Applicant's request for flexible working arrangements be granted or an order that the Respondent make changes in the employee's working arrangements to accommodate the circumstances mentioned in s.65B(1)(a). That is an application for orders under s.65C(1)(f).

• [3] After a number of unsuccessful attempts were undertaken to resolve the matter through conciliation processes, directions were made for the filing of material and the matter was listed for hearing on 26 June 2025.

• [4] Just prior to the hearing, the Applicant advised the Respondent of her intention to resign her employment with the Respondent. In those circumstances the hearing of the matter was vacated and the Applicant was asked to confirm whether she wished to press or discontinue the application. The Applicant advised that she did not propose to discontinue the application.

• [5] The parties were then asked to provide further evidence as to the status of the Applicant's employment and make submissions as to whether the Commission should dismiss the application on its own initiative under s.587(1)(c). The parties were also asked to provide submissions as to whether orders could be made under s.65C having regard to the requirement to take into account fairness between the employer and employee (s.65C(2)), and, given that orders were sought under s.65C(1)(f), the Commission's state of satisfaction as to any reasonable prospect of the dispute being resolved without the making of orders (s.62C(3)).

• [6] The parties confirmed that the Applicant had tendered her written resignation on 25 June 2025 to take effect on 25 July 2025 and that the Respondent accepted that resignation in writing on 1 July 2025. The parties are working to finalise the Applicant's departure, her last working day being 25 July 2025. The Applicant has continued to work from home to the present date and the Respondent has confirmed that the Applicant will be permitted to do so until her employment ceases on 25 July 2025.

• [7] Under s.65C of the Act the Commission has a discretion as to whether it should deal with the dispute by making orders of the kind referred to in s.65C(1). In circumstances where orders of the kind referred to in s.65C(1)(f) are contemplated, the Commission may only make an order under that paragraph if it is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order. The reference to 'the dispute' in that section is to the dispute referred to in s.65B(1), that is, the dispute about the operation of Division 4 of Part 2-2 of the Act if an employee requests a change in working arrangements under s.65 and the employer has refused the request or 21 days has passed since the request was made and the employer has not provided a written response.

• [8] Section 65C(3) requires the Commission to make an assessment before orders under s.65C(1)(f) are made. The Commission must be positively satisfied that there is no reasonable prospect of the dispute being resolved without an order being made. In this instance I am unable to make an order under s.65C(1)(f) because I cannot be satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order. That is because the dispute between the parties has now been resolved in substance. The Applicant will be permitted to work from home for the remainder of her period of employment which will come to an end on 25 July 2025. The issue of what should flow from the request and the refusal of the request has been overtaken by events and decisions made by the parties.

• [9] In any event, to the extent it can be said that there is some aspect of 'the dispute' that remains, even if orders were made directed at the future conduct of the parties, those orders would not resolve any residual dispute between the parties because from 25 July 2025 there would be no employment relationship between the parties in relation to which those orders could operate. There would be no utility in making orders of that kind.

• [10] I am also required by s.65C(2) to take into account fairness between the employer and the employee in making any orders under s.65(1). I do not consider that I should, as a matter of fairness, require an employer to have to respond to the present application beyond the responses that have already been provided, since there is no longer any practical utility in doing so. I would not make an order in the exercise of my discretion in those circumstances even if I were empowered to do so.

• [11] As I am not satisfied for the purpose of s.65C(3) that there is no reasonable prospect of the dispute being resolved without the making of orders under s.65C(1)(f), no such orders can be made and the application is dismissed.

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