Deputy President Lake of the Fair Work Commission (FWC) has dismissed a NES flexible work arrangement (FWA) dispute after finding the applicant had not made a valid request under section 65(1A) of the FW Act and the respondent had reasonable business ground for refusing the request under section 65(3) of the FW Act.
The applicant, a Utility Trade Worker (UTW) at Kareeya Power Station in Far North Queensland, formerly lived near the power station in Tully however decided to relocate to Townsville for schooling opportunities. The applicant subsequently returned to Tully because his son had issues at the Townsville school, with his wife and daughter remaining there. In September 2024, he submitted a FWA request seeking to work every second week from Townsville until 6 December 2024, to allow him to settle his son into a new school in Innisfail. This was approved on a temporary basis.
The applicant made another request for a FWA in February 2025, this time asking to work one week a month remotely from Townsville. The request was made on the ground that he was a parent of school-aged children, and the FWA would allow him to assist with the care of his children and alternate with his wife between locations to support both children’s schooling needs. The respondent indicated a concern regarding the period of the FWA and requested information from the applicant by email about what work he could perform from home. Ultimately, following further correspondence, the request was refused in April 2025.
The Deputy President notably found:
- The FWA request was not validly made by the applicant. The request for changed work arrangements needs to be “because of” the relevant circumstances in section 65(1A). While the applicant had referred to his son’s special needs (autism, ADHD and anxiety) in his submissions, he had not referred to these in the request. The applicant had not clearly articulated the nexus between the FWA and the specific care needs of the children (such as a need to pick them up or drop them off to school). The operative reason for the request appeared to be the family’s split residence and the applicant wanted to spend more time in Townsville. The decision to split the family was not made by the respondent and it was not obliged to accede to an FWA request to accommodate a personal choice for where the applicant’s family chose to reside.
- The respondent had not complied with the requirements of section 65(1) because it had not provided a written response to the request within 21 days. However, it had “discussed” the request with the applicant via email. In the Deputy President’s view, “discussion” for the purpose of section 65(3) merely requires providing an opportunity for the applicant to provide views and an in-person discussion is not required. Further, the respondent had considered the consequences of refusal under section 65A(3)(c).
- The respondent had reasonable business grounds for refusing the request. The fact an 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. The relevant factors included that the applicant was one of two UTW and 80-85% of his duties required him to be physically present. Critically, he was required to conduct dam inspections twice a week for regulation compliance and the respondent also has a policy requiring employees to use a buddy system when conducting work in isolated areas, such as during dam inspections. The Deputy President considered it was quite different to budget for a temporary absence, such as when a UTW is sick, than to continually cover the applicant’s workload (which would require the respondent to pay the replacement employee higher duties pay and divert them from their other duties). The Deputy President also noted the relatively few staff employed by the respondent at Tully, and also that the ETU had taken issue with the respondent utilising contract cleaners to attend dam inspections during the applicant’s previous temporary FWA.
The Deputy President dismissed the application.
