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 - request not "because of" s.65(1A) circumstances - section 65A and reasonable business grounds considered - application dismissed

• [1] On 11 May 2025, Mr Terry Hutchinson (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 flexible working arrangements with Cleanco Queensland Ltd (the Respondent).

• [2] The Commission attempted to resolve the dispute on 5 June 2025 through conciliation which was unsuccessful. I determined that it was appropriate that the matter be listed for arbitration to resolve this dispute in accordance with s.65B(4)(b) of the Act.

• [3] Directions were issued and the matter was listed for Hearing on 21 July 2025. The Applicant was represented by Mr Donnie Harris of Donnie Harris Law. The Respondent was represented by Ms Sam Betizen of Allens.

• [4] The Applicant commenced employment with the Respondent on 9 July 2012.[1]

• [5] The Applicant is employed as a Utility Trade Worker (UTW) at Kareeya Power Station, at Koombooloomba Dam in Far North Queensland.

• [6] In September 2024, the Applicant submitted a flexible working arrangement request (the first request) to work remotely every second week from 30 September 2024 to 6 December 2024.[2] The request followed a family decision to relocate from Tully to Townsville for the schooling opportunities there. The family formerly lived in Tully near the workplace. After the Applicant's son had a traumatic experience at a school in Townsville, the Applicant then moved back to Tully with his son. The request was to allow the Applicant to settle his son at his new school in Innisfail.[3] The first FWA request was approved by the acting site manager, Mr Jamie Watson.

• [7] On 27 September 2024, Mr Watson sent a letter to the Applicant as follows:

I refer to our review of your temporary flexible work arrangement application on 24 September 2024.

CleanCo values flexibility and is committed to supporting our employees maintaining a work/life balance. We have carefully considered your request and are pleased to advise we can accommodate the temporary flexible working arrangement you have requested for a defined period of time.

Your existing hours of work will remain 36.25 hours per week (1FTE), Tuesday through to Friday.

As you have outlined in your communications, the below specifies which dates you will be on site in Kareeya and when you will be working remotely from Townsville. (These are subject to change if you are unexpectedly needed on site, with a minimum of 24 hours notice given)

• 8th - 11th October 2024
• 22nd - 25th October 2024
• 5th - 8th November 2024
• 26th - 28th November 2024

• 2nd - 3rd October 2024
• 15th -18th October 2024
• 29th October - 1st November 2024
• 12th - 14th November 2024
• 19th - 22nd November 2024
• 3rd - 6th December 2024

As discussed, approval is given for you to work remotely, on the requested days mentioned above, you're your home, in Townsville. These dates fall into the period of 30 September 2024 until the 6 December 2024.

You will continue to complete any work required or requested by management, attend all required meetings online, be available during business hours and to attend site if requested (with a minimum of 24 hours notice given). Set tasks will be assigned to you during this period to complete. Failure to complete these tasks may result in termination of this temporary flexible working arrangement. There will also be the opportunity to complete specific training relevant to your role, at CleanCo's discretion.

All other terms and conditions in your employment agreement remain unchanged.

This arrangement is agreed to on a trial basis. This means we will monitor and review this arrangement to ensure it continues to meet both your needs and the operational requirements of the business. The first review will take place on or around the 4 November 2024 after the commencement of this arrangement, or earlier if required. The Arrangement may be terminated at any time by written mutual agreement. If this Agreement is terminated, you will return to the terms and conditions as provided in the employment agreement relevant at the time.[4]

• [8] The Applicant's temporary flexible working arrangement ended on 6 December 2024.

• [9] On 23 January 2025, the Applicant had an informal discussion with the Respondent's site manager, Mr Mark Shirley. The Applicant indicated his intention to apply for another flexible working arrangement.

• [10] On 25 February 2025, the Applicant applied for a flexible working arrangement by completing the Respondent's FWA application form. The FWA was requested for a duration of 10 months. Under the heading "Reason(s) for Flexible Work Arrangement", the Applicant wrote:

In accordance with section 65(1) of the Fair Work Act (FW Act) I would like to request flexible working arrangements that are different to my current working arrangements.

I am eligible to make this request as I am a parent of school-aged children (9 year old son and 12 year old daughter).

I can confirm that I am a full-time employee who has worked continuously as an employee of this organisation for the last 12 months.

I am making the request for this flexible work arrangement as this will assist me to care for my children and provide additional support to my wife as there has been recent changes to my son's educational, emotional and developmental needs. Specifically, my son is now completing his school year in Innisfail and my daughter continues to attend school in Townsville. These changes will assist me to care for my children and share the caring responsibilities with my wife. It is proposed that the flexible work arrangements will allow my wife and I to alternate between locations to support both children's schooling needs.[5]

• [11] Under the heading "Any Changes to Role Requirements as a Result of the Flexible Work Arrangement", the Applicant wrote:

As discussed during my meeting with Mark Shirley on 23 January 2025, I would like to change my current working arrangements by varying my work location, specifically having the opportunity to work remotely from Townsville. I have reviewed the Kareeya planning schedule and have attempted to accommodate my request for flexible work arrangements around staffing, scheduled activities and responsibilities, and organisational demands[6]

• [12] The Applicant proposed to work from home one week a month. During that week, he would be located in Townsville. The Applicant stated that he could complete tasks while working remotely such as "I can attend scheduled meetings via Teams, commence drafting SWAs, follow up outstanding work orders, attend HSE meetings, complete any other tasks that may be allocated to me through management, and be available via email and telephone."[7]

• [13] On the same day, 25 February 2025, Mr Shirley requested further information about the FWA request:

As discussed, could you please add some detail around what you will be doing on your weeks working from home i.e. specific training, document reviews etc.

I would also prefer that this arrangement was a shorter period as I do not want to commit to the whole of the year if this arrangement doesn't suit the site requirements.

Have you considered the purchase leave option?[8]

• [14] Later in the afternoon, the Applicant replied as follows:

I have provided some more information on the question that you have raised. I have also attached CleanCo Flexible Work Guideline and the Fair work ombudsman requests for Flexible work Guideline.

Q: Provide some detail around what you will be doing on your weeks working from home. i.e. specific training, document reviews etc

A: Under Section 4 of the flexible work arrangement, I have provided several tasks in this section that I can complete from working from home. As my manager and Damian as superintendent would some tasks be allocated from both of you, as you're the management level on our site.

Q: I would also prefer that this arrangement was a shorter period as I do not want to commit to the whole of the year if this arrangement doesn't suit the site requirements.

A: Under Section 5 flexible work arrangement, there are two questions that I have sign and agreed to that covers both parties in this agreement.

A: I don't think this has anything to do with the flexible work arrangement and to purchase leave I would need to purchase the leave last year to be able to take it this year.[9]

• [15] On 19 March 2025, Mr Shirley received an email from Mr Robert Hill, ETU Organiser. Mr Hill was following up on the Applicant's behalf regarding the status of the FWA request:

Terry has contacted me about this one. He did mention that you indicated that you wanted to catch up with him but obviously that hasn't happened. Can you tell me where this request is up to?

• [16] On 19 March 2025, Mr Shirley replied to Mr Hill:

Yes, I have been meaning to catch up with Terry to discuss further, however he left unexpectedly for a family emergency last Thursday and he is on leave this week, so I haven't been able to yet.

I understand he has some family circumstances in relation to his son and school requirements. He has proposed that he works from home 1 week per month to meet these circumstances.

I am happy to work with this request, however not willing to commit to 1 week per month working from home as I can't justify a UTW role working from home for this amount of time for a year and is likely to continue into next year. As such I propose a FWA arrangement for 6 months

If other people on site were to make similar requests, we could not operate.

In saying that we do have some documents that need to be reviewed and external training that Terry could do whilst working from home, so my discussions with Terry were going to be around a combination of working from home and either annual, purchased, or long service leave.

As you can appreciate, we are a small site and Terry's role is a site-based role . With people not on site to carry out their roles it puts pressure on the rest of the team.

Other requests from employees working from home on an ad hoc basis have been approved and are likely to continue where appropriate.

I hope this covers off on this request. Happy to discuss further if required.

• [17] On 2 April 2025, the Applicant had a conversation with the site manager, Mr Mark Shirley in the tearoom. The Applicant described this as a "confrontation". Mr Shirley recalls that the Applicant came into the tea room and asked why he had not been given a response to his request within 21 days.[11] The Applicant recalls that Mr Shirley told him that the Applicant was "not going to like the outcome" of the FWA request.[12] The Applicant recalled that he replied with words to the effect of "obviously, CleanCo do not care".[13] Mr Shirley denies saying that the Applicant would not like the outcome but recalls saying that the FWA request would not be approved.[14]

• [18] Later in the afternoon on 2 April 2025, Mr Shirley sent the Applicant an email denying the FWA request:

Thanks for sending through your Flexible Work Arrangement request form and your time on 23 January 2025, discussing your request. I note that you made this application dated 25 February 2025 however during the time of application and now you've been on leave from 13 March to 24 March 2025 and I was undertaking mandatory training at Swanbank from 24 March to 28 March 2025. I did respond to you via email on 25 February 2025, shortly after you sent through your application request. However, apologies and acknowledgement that we've exceeded the 21-day response timeframe, as outlined in section 65A (1) of the Fair Work Act.

After consideration of the application you've put forward, unfortunately I am unable to approve your request to work from home one week per month for the specified 10-month period as outlined. Below I have detailed my reasons why this request can't be operationally accommodated as currently requested and have proposed an alternative solution.

• The predominant function of Utility Trades Worker (UTW) is one required to carry out tasks that require physical site attendance.
• You are one of two UTW's employed at the Kareeya site and your physical absence at site would require the work to be carried out i.e.. dam inspections, grounds maintenance (i.e.. slashing), cleaning of the leaves from the trash screens and other onsite planned tasks, by the other UTW.
• In addition to the above point, as you are aware we have a 'Lone Worker Policy', meaning the week you're away from site someone else having to physically attend the abovementioned site-based tasks with Neil to ensure adherence to this policy. This means having to remove someone from their day-to­day tasks within their role remit and attracts payment of higher duties for the individuals who I've determined would have scope in their day to attend these.

1. I am able to accommodate you working remotely for a maximum of 2 weeks in any 6-month period. The first step of this alternate solution would be to determine the prioritisation of documents requiring review (week 1). The second part of this proposed arrangement would be to have us identify and you attend training (noting you referenced potential training in your application), off site (week 2). Beyond these two weeks (within any 6-month period) I couldn't reasonably provide you with meaningful tasks to carry out when working remotely. Acknowledging that during the two weeks of you working remotely, I will have someone attend and carry out the above utility work activities including the statutory dam inspections with Neil on the Tuesday and Friday of these weeks. The beforementioned weeklong blocks can be flexibly applied i.e.. if you have a 2-day training course and 2 days reviewing documents, this

To meet your family requirements, CleanCo would also consider application and approval of purchased, annual, personal, or long service leave (or a combination of any/all -- with appropriate documentation as required).

Please let me know if you'd like to talk through the above further.

• [19] On 3 April 2025, Mr Hill replied on behalf of the Applicant:

I write in response to your decision to decline Terry Hutchinson's request for a Flexible Work Arrangement at Kareeya Power Station. While we acknowledge that any such arrangement must be operationally viable, we believe this request arises from exceptional personal circumstances and is not intended as a permanent measure.

It is disappointing that the decision appears to have been made in such a definitive manner, with little engagement or negotiation with Terry. The Fair Work Act provides that an employee's personal circumstances must be genuinely considered, and it is difficult to see how this has occurred in this instance.

Your response cites operational concerns, particularly the need for a second person for certain tasks and the impact on a small team. However, we note that in the same response, you propose that Terry utilise purchased leave, annual leave, personal leave, or long service leave to meet his family commitments. It is unclear how these leave options would alleviate the operational challenges you have raised, given that they would still require his absence to be managed in the same way.

This raises concerns that rather than engaging in a genuine process to find a balanced solution, the company is instead shifting the burden onto Terry to reduce its leave liability. This approach does not reflect the intent of workplace flexibility provisions and does little to foster goodwill.

On behalf of Terry, we propose an alternative arrangement to break this impasse. Would you consider a compromise where every second month is addressed through a week of leave, while the alternating months involve a Flexible Work Arrangement in line with policy? This would provide a structured approach that balances operational needs with Terry's personal circumstances.

We appreciate your reconsideration of this matter and look forward to discussing a fair and workable solution.

• [20] On 8 April 2025, Mr Shirley replied to Mr Hill via email:

Thanks for your email on behalf of Terry. I want to confirm CleanCo's position in relation to Terry's Flexible Working Arrangement request and provide some additional information.

Firstly, Terry and I have had conversations about his previous Flexible Working Arrangement and his most recent application for a Flexible Working Arrangement. Most recently, I asked him for a conversation about most recent application, to which he advised me that he wouldn't discuss without yourself present. I have genuinely considered Terry's current personal circumstances and have proposed an alternative solution.

To your second point, by Terry utilising one of the listed leave types would allow me to use budget to provide the higher duties to another employee to undertake the UTW duties for the period of leave. When an employee takes leave, this budget comes from another 'bucket'. This was not an attempt to have Terry 'reduce his leave liability' for CleanCo, rather, providing an alternate solution.

When making an informed decision in relation to Terry's request I also have to factor in other employees' leave applications, to ensure full operational coverage of the site.

Terry has had a previously approved Flexible Working Arrangement which included a working from home component, at this time discussions with Terry and Tim Hogan were around this type of flexible working arrangement not being sustainable into the future and would not exceed December 2024.

Cleanco is unwilling to enter into a long-term flexible working arrangement that contains an element of working from home for a site-based role. The current CleanCo 6-month proposal is highly unlikely to be reapproved upon its expiry date.

CleanCo would consider a long-term flexible work arrangement that was a combination of annual leave, long service leave, purchased leave, leave without pay etc.

I'm happy to talk through via phone or by way of meeting if that's suitable.

• [21] The Applicant argues that no attempt was made by Mr Shirley to arrange a meeting with Mr Hill in attendance until after 3 April 2025. The Applicant states that Mr Shirley contacted him in the period between 3 April 2025 and 8 April 2025 to have to a discussion. However, the Applicant was not willing to have a discussion without Mr Hill present.

• [22] On 11 April 2025, the Applicant was informed by Mr Hill that the ETU would no longer be representing him.

• [23] On 11 May 2025, the Applicant lodged the dispute application in the Commission.

Was the Applicant's flexible work arrangement request validly made?

• [24] In Quirke v BSR Australia Ltd [2023] FWCFB 209, Full Bench of the Commission set out the pre-requisites for a flexible working arrangement application to be validly made in accordance with s.65(1), s65B and s65C of the Act. If the request is not validly made, then the Commission has no jurisdiction to arbitrate. Those pre-requisites are:

1. At least one of the circumstances in s.65(1A) applies to the employee. It must be a present circumstance rather than an anticipated circumstance.
2. The request for changed work arrangements is "because of" the relevant circumstances in s.65(1A). The request must relate to the relevant circumstance in s.65(1A).
3. The employee has a minimum period of service of 12 months.
4. The request must be in writing.
5. The request must set out the details of the change sought and the reasons for the change.

• [25] The pre-requisite which requires consideration in this case is whether the request for changed work arrangements is "because of" the relevant circumstances in s.65(1A). I note that it is uncontentious that the Applicant has school aged children, has been employed for 12 months and made the request in writing using the appropriate form and with the requisite details.

• [26] I adopt the comment of Deputy President Colman in Sampsonidis v Make It Mine Finance Pty Ltd Trading AS Aspire 42 [2025] FWC 999:

The Act is very clear that the desired change in working arrangements must be 'because of' the relevant circumstance in s 65(1A)(see s 65(1)(b)), and the request for change must relate to the relevant circumstance (see Quirke v BSR Australia Ltd [2023] FWCFB 209at [23]). An applicant cannot simply invoke a personal attribute and expect to be able to work in a manner of his choosing.[15]

• [27] The Applicant's FWA request of 22 February 2025 stated:

I am making the request for this flexible work arrangement as this will assist me to care for my children and provide additional support to my wife as there has been recent changes to my son's educational, emotional and developmental needs. Specifically, my son is now completing his school year in Innisfail and my daughter continues to attend school in Townsville. These changes will assist me to care for my children and share the caring responsibilities with my wife. It is proposed that the flexible work arrangements will allow my wife and I to alternate between locations to support both children's schooling needs

• [28] The Applicant did not provide any further documentation with his request.

• [29] In the Applicant's written submissions, it was stated:

a. The Applicant made the request so that he could provide assistance to his wife and provide for his son's educational, emotional and developmental needs.

Note: the Applicant's son has special needs as follows:

b. Specifically, the Applicant's son is attending school at Innisfail, while his daughter attends school at Townsville. The purpose of the FWA was so that the Applicant and his wife could alternate locations to support the needs of both children.

• [30] I note the Applicant did not refer specifically to his son's special needs in the FWA request.

• [31] During the hearing, the Applicant explained his family situation. His family was originally located in Tully. When they lived in Tully, the Applicant's son attended a school in Innisfail. The family decided to relocate to Townsville in February 2023. The Applicant's son then had a traumatic experience at the new school in Townsville and the Applicant and his wife decided for their son to go back to the school in Innisfail. The Applicant's wife remained with their daughter in Townsville. The Applicant's wife has a flexible working arrangement and works remotely for her employer in Innisfail. The Applicant's son lives with the Applicant in Tully. The Applicant has assistance with his son from his parents, who live in a granny flat at the Tully property.

• [32] As articulated by the Applicant during the hearing, the effect of the FWA he requested in February 2025 would be this: he would spend one week of the month with his daughter in Townsville, while his wife would switch with him and live with their son in Tully. The Applicant said this would give him respite from caring for his son. The Applicant's wife works remotely but her office is closer to Tully than Townsville. So, the Applicant's wife would be able to work from her office one week per month.

Is the request "because of" the circumstances under s65(1A)?

• [33] I find that the request is not because of the Applicant's circumstances under s65(1A).

• [34] I accept that the Applicant has school aged children. I accept that the Applicant's son has special needs. I have been provided with a Paediatrician's letter attesting to that fact.[16] However, I do not accept that the Applicant's request is "because of" those circumstances.

• [35] "Because of" connotes a cause-and-effect relationship where the employee's circumstances under s.65(1A) are an operative reason for making the request. It is not enough to simply have children and to desire to spend more time with them during the week. The purpose of the flexible working arrangement provisions under the Act is not to promote a "work-life balance". The relevant circumstances under the Act giving rise to an entitlement to make an FWA request are limited to those listed in s.65(1A). The employee must articulate how the FWA request is related to the specific care needs of children, for example, by allowing the employee time to pick up or drop off their children at school. The Applicant does not clearly articulate this nexus in his written material. Rather, he simply refers to having children, and states that his FWA would allow the Applicant to "support" his children's needs. If there is a nexus, it is very tenuous. The operative reason for the request instead appears to be that the Applicant's family is split between Tully and Townsville and the Applicant wants to spend more time in Townsville. This is not a relevant circumstance under s.65(1A).

• [36] I do not understand how the Applicant's request for a change in his working arrangements could be stated to be "because of" his son's "educational needs" as he stated in his FWA request. I find the Applicant's assertions to that effect to be somewhat misleading. On the Applicant's own evidence, during his working week in Tully, the Applicant receives assistance with his son's schooling arrangements from the Applicant's parents. On the week the Applicant proposes to work from Townsville, he would not be with his son in Tully, but he would instead be with his daughter in Townsville. I find it hard to conclude that the FWA request is for the purpose of allowing the Applicant to provide for his son's educational needs. Rather, following the Applicant's evidence in the hearing, it appears the purpose is to facilitate his wife to caring for his son following their own decision to have different living locations approximately 200 kilometres apart. The stated purpose of the request does not align with the requested changes to the Applicant's working arrangements.

• [37] The change in working arrangements would allow the Applicant to spend more time with his family in Townsville. I find that this was the operative reason for making the request. I sympathise with the Applicant's desire to spend more time with his family, but this is not a relevant circumstance under s.65(1A). The reason the Applicant is separated from his daughter throughout the week is because the family is split between Tully and Townsville. The decision to separate the family between Tully and Townsville was not one which was made by the Respondent. The employer is not obliged to accede to an FWA request to accommodate a personal choice for where the Applicant's family chose to reside. For example, an employer is not required to allow a FIFO worker to work from their family home for part of their rostered shift. That would be unreasonable.

• [38] As the FWA request was not "because of" the Applicant's circumstances under s.65(1A), the Commission does not have jurisdiction to arbitrate the dispute. Nevertheless, I will comment on matters raised by the parties in their submissions.

• [39] It is uncontroversial that the written response from the employer was not provided within 21 days. The Respondent therefore did not comply with the requirements of s.65A(1) of the Act. The Respondent submits that this was because the Applicant was on leave between 13 March 2025 and 24 March 2025. Mr Shirley was then on leave between 24 March 2025 and 28 March 2025. I am not particularly persuaded by this submission, given there was at least a two-week period before the Applicant went on leave in which the Respondent could have discussed the request with him.

• [40] Section 65A(3) notes that the employer "may refuse the request only if" four requirements are met:

(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

• [41] The Respondent submits that Mr Shirley met the requirements of s.65A(3) through his correspondence with Mr Hill from the ETU on 19 March 2025. The Applicant submits that this correspondence does not meet the requirements of s.65A(3) and that the Respondent was required to meet with the Applicant. However, Mr Hill commenced this email with "Terry has contacted me about this one". An employer can discuss an FWA request through the employee's representative. It is also not correct for the Respondent to assert that the Applicant received no correspondence from Mr Shirley prior to the FWA request being denied. On 25 February 2025, Mr Shirley asked the Applicant for further information about his request and asked the Applicant if he had considered other alternatives such as purchase leave. The Applicant mostly reiterated what he had said in the FWA application form instead of providing further information.

• [42] The Applicant submits that the Respondent should have followed its own internal policy which requires a meeting to be conducted between the employee and Responsible Manager.[17] Although a meeting would have been ideal, I accept that this was complicated by periods of leave by both the Applicant and Mr Shirley. Further, the Respondent's internal policy does not displace the requirement under the Act. I consider that an in-person discussion is not required under s.65A(3)(a). "Discussion" merely requires providing an opportunity for the Applicant to provide his views. On balance, I consider that Mr Shirley did "discuss" the FWA request with the Applicant through his correspondence with the Applicant and Mr Hill via email.

• [43] Mr Shirley said in his email of 19 March 2025: "I understand he has some family circumstances in relation to his son and school requirements". When Mr Shirley refused the FWA request, he also referred to other options which the Applicant may take including purchasing leave. I find that this correspondence indicates that the Respondent did consider the consequences of refusal under s.65A(3)(b).

Whether reasonable business grounds exist for refusing the request

• [44] I note the Applicant previously had a flexible working arrangement from 30 September 2024 to 6 December 2024. I note that the Applicant had no notice that the Respondent was not content with that arrangement. However, the arrangement was always expressed to be temporary. The fact that the employer has granted an FWA in the past is relevant, but not determinative. An employer may grant an FWA at one point in time and decide on reasonable business grounds, at a later point, not to grant an FWA.

• [45] In this case, I am concerned that the Applicant's submissions posit requirement as being whether the Respondent would be able to implement the request, rather than asking whether there are reasonable business grounds for refusal. The test of reasonable business grounds is not whether the employer would be capable of implementing the FWA request. Section 65A(5) states:

(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.

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)).

• [46] The Applicant is a Utility Trade Worker (UTW). He is one of two UTWs onsite. A significant proportion of the Applicant's tasks are site-based, involving manual work. The Applicant estimates that 50% of his weekly duties require his attendance onsite. The Respondent estimates that 80-85% of the Applicant duties require the Applicant to be physically present.

• [47] Critically, part of the Applicant's role is to conduct inspections of the Koombooloomba Dam twice a week. This is a task which the Respondent must complete twice a week in accordance with the relevant regulations. The Respondent has a Lone Worker Policy. For safety, the Respondent requires employees to use a buddy system when conducting work in isolated areas, including during dam inspections. If the Applicant is not available to be present during the dam inspection, then another employee must be present to accompany the other UTW during a dam inspection. That employee is required to be paid a higher duties allowance. A dam inspection takes most of the day to complete. They are also not able to conduct their usual tasks during this time.

• [48] The Applicant pointed to several times when another employee has been present during a dam inspection, when one of the UTWs is on leave. However, this does not engage with the central point of the Respondent's argument. It is quite different to budget for a temporary absence, such as when a UTW is sick, than to continually cover the Applicant's workload. The Respondent would be required to pay higher duties for another employee at least two days a month, in addition to the Applicant's salary. Further, those employees would not be able to complete their usual tasks on those days. I note that the Respondent has a relatively small number of staff at Tully - 18 Full time staff. I consider that the Applicant has not considered the strain which his absence would place on the other staff members.

• [49] During the Applicant's previous temporary flexible working arrangement, the Respondent utilised contract cleaners to attend during dam inspections. This was strongly objected to by the ETU who alleged that engaging contract cleaners to conduct this work was a breach of the Enterprise Agreement.[18]

• [50] I find that the Respondent had reasonable business grounds for refusing the FWA request. Firstly, the Applicant's role is one which requires site attendance. Non-attendance on site would create additional costs for the business as the Respondent would have to pay a higher duties allowance for other employees to cover the Applicant's dam inspection responsibilities, in addition to diverting those employees from their daily tasks. Further, it is impractical for the Respondent to absorb the Applicant's duties using its existing staff, as there are a small number of staff onsite.

• [51] I find that the FWA request was not validly made under s.65(1A) of the Act. I also find that the employer complied with the requirements of s.65A(3) of the Act. I find that reasonable business grounds exist for denying the FWA request. The application is dismissed.

[2] Mark Shirley Witness Statement [15]

[4] Annexure MS-1 to Mark Shirley Witness Statement

[8] Annexure TSH-7 to Applicant Witness Statement

[10] Annexure MS-4 to Mark Shirley Witness Statement

[12] Applicant Witness statement [23]

[14] Mark Shirley Witness Statement [30]

[15] Sampsonidis v Make It Mine Finance Pty Ltd Trading AS Aspire 42 [2025] FWC 999 at [2].

[16] Annexure TSH-1 to Applicant Witness Statement.

[17] Annexure TSH-4 to Applicant Witness Statement., Flexible Work Guideline, page 6

[18] Annexure MS-3 to Mark Shirley Witness Statement

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