Case note: Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82
The Full Bench of the Fair Work Commission (FWC) has held that a school wrongly refused a teacher’s flexible working arrangement request, because its response did not meet all of the requirements set out in the Fair Work Act 2009 (Cth) (FW Act).
Responding to flexible working arrangement requests
Under s 65A(1) of the FW Act, if an employee submits a request for a flexible working arrangement, the employer must provide a written response within 21 days. The employer’s response must state whether it accepts or refuses the employee’s request, and if the request is refused, the reason for the refusal. Section 63A(3) states that an employer may only refuse a flexible working arrangement request if:
- the employer has discussed the request with the employee and has tried to reach an agreement about implementing changes to their work arrangement;
- the employer and employee have not reached an agreement;
- the employer has had regard to the consequences of refusing the request; and
- the refusal is based on reasonable business grounds.
Facts
In 2016, Ms Elizabeth Naden commenced as a teacher at Sacred Heart Primary School Pymble (School). She was promoted to the executive role of Religious Education Coordinator (REC role) in 2023. In May 2024, Ms Naden commenced parental leave. She planned to return to work in January 2025 for the start of the new school year.
On 21 September 2024, Ms Naden made a request for a flexible working arrangement (Flex request). She sought to work part time in Terms 1 and 2 2025, job sharing the REC role, and then return to the REC role in a full-time capacity in Terms 3 and 4 2025. The Flex request was made pursuant to a clause contained in the enterprise agreement which covered her, which was in the same terms as the FW Act. Ms Naden said she made the Flex request as she could only secure childcare arrangements on two weekdays.
The School communicated with Ms Naden on several occasions during the latter part of 2024 regarding the Flex request. In November 2024, the School advised Ms Naden that as a matter of policy, it was not able to accommodate the Flex request because she held the executive REC role. The School provided her with various options, including that she work part time as a classroom teacher (i.e. not in the REC role) in Terms 1 and 2 and then return to the REC role in Terms 3 and 4.1
Ms Naden was unable to find a policy which prohibited her from working part time in the executive role. She requested that the School provide written reasons for refusing her Flex request.
On 12 December 2024, the School provided Ms Naden with a letter which outlined its reasons for refusing the Flex request, including that it would have an adverse impact on student achievement, increase the workload of other staff and have significant cost implications (Response). The School claimed these amounted to reasonable business grounds within the meaning of section 65A(5) of the FW Act.
Ms Naden did not accept the refusal. On 19 December 2024, she made an application to the FWC to determine this dispute.
Decision at first instance
Ms Naden contended, amongst other things, that the School’s Response did not satisfy the requirements of section 65A FW Act.
Commissioner Matheson accepted that the School’s reasons for refusing the Flex request were based on reasonable business grounds, stating that the proposal would “impact the School’s capacity to effectively deliver education effectively […] which risk[s] detriment to student learning”.2
Appeal
Ms Naden sought an expedited appeal, so that if it was granted, she could work in Term 2 2025.
On 22 April 2025, the Full Bench of the FWC held that “[e]ach of the matters in s 65A(3) must be satisfied before an employer is entitled to refuse a request for flexible work arrangements”.[3] The Full Bench held that the Response failed to acknowledge the consequences of the refusal on Ms Naden, which is required by s 65A(3)(c). The School was required to have regard to the consequences before it could consider any refusal based on reasonable business grounds (s 65A(3)(d).[4]
The Full Bench held that the School was not entitled to refuse the Flex request and Ms Naden was entitled to return to work in accordance with her proposed Flex request.
Lessons for employers
Employers must ensure that they meet all of the requirements when responding to a flexible working request in s 65A, including the 21 day response time period.
Importantly, employers can only refuse a flexible working arrangement request if they comply with each sub-section of 65A(3). To avoid doubt, this is to be treated like a checklist. Failure to fulfil even one of these sub-sections will result in the refusal being invalid.
Contact us
If you are an employer seeking advice on flexible working arrangements, please contact a member of our Workplace Relations group.
References
1. Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWC 317 at [44].
2. Ibid at [191].
3. Ibid FWCFB 82 at [50].
4. The Full Bench also held that the Response was not provided within 21-days, as required by s 65A(1), given it was provided 82-days after the Flex request was made.
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