School required to implement flexible working arrangement following appeal

In Naden v Catholic Schools Broken Bay Limited [2025] FWCFB 82, the Full Bench of the Fair Work Commission overturned a decision to refuse a teacher’s request for a flexible working arrangement (FWA) because the School failed to properly take into account the personal consequences for the teacher.

Key takeaways

  • When responding to a FWA request, don’t fall into the trap of focusing on the reasonable business grounds you are relying on – make sure you carefully consider all matters set out in section 65A of the Fair Work Act 2009 (Cth).
  • Whilst the Commission has acknowledged that some workplaces – such as schools – face additional operational constraints (when compared to office-based workplaces), an employee may be able to successfully challenge the rejection on the basis that there has not been fulsome consideration of the personal impact of rejection.
  • Where you anticipate refusing a request, promptly commence a consultation process, with particular focus on:
    • the circumstances that have triggered the request (e.g. caring obligations);
    • the personal consequences for the employee if the request is refused; and
    • providing the employee with the opportunity to respond to any difficulties the employer foresees with accommodating the request.
  • If you are unable to accommodate a FWA request, your comprehensive written response to your employee should cover off on each of the employer obligations under the Fair Work Act.

The original FWA request – September 2024

  • The teacher was employed at a primary school in NSW as a Religious Education Coordinator (REC), an executive level role that involved a teaching role with additional responsibilities.
  • In advance of her return to work in Term 1 of 2025, she requested a reduction in her full-time working hours to three days per week for Term 1 and 2 of 2025 – with an intended return to full-time employment from Term 3. The teacher had secured childcare for 3 days per week, and had caring obligations for the remaining 2 days.
  • The School said it was unable to accommodate a part-time arrangement for the REC role. It provided three alternatives, each of which involved the teacher stepping down from her REC role until she resumed full-time work, with a fourth option to return to the REC role on a full-time basis.
  • The teacher rejected the School’s options. She wanted to remain in her REC role (but temporarily on a part-time basis), and conveyed that the reduction in pay associated with working in a teaching-only role would place significant financial pressure on her family.
  • In December 2024, the School denied the request on reasonable business grounds, citing the ‘adverse impact on student achievement’, ‘significant cost increase’, ‘adverse workload impact on other staff’, and ‘reduc[tion of] leadership at the School’.
  • The teacher felt the School had not genuinely attempted to reach an agreement regarding her request. Supported by the Independent Education Union, she applied to the Commission, where the matter eventually proceeded to arbitration.

First decision – February 2025

Commissioner Matheson held that while the School did not provide reasons until well outside of the 21-day timeframe, it did have reasonable business grounds to decline the teacher’s request. The Commissioner accepted the School had to balance a number of complex priorities, including the impact on student learning opportunities. She noted that:

‘The [School] is not serving customers who are buying widgets. Its product is of critical value to society, being the provision of education to primary school children in the formative years of their life, and proposals that impact the School’s capacity to effectively deliver education effectively and which risk detriment to student learning should not be taken lightly.’

Full Bench decision – April 2025

The teacher appealed to the Full Bench of the Commission, which overturned Commissioner Matheson’s decision on the basis that the Commissioner had failed ‘to resolve the dispute over [the School’s] failure to consult under s 65A(3), including that [the School] failed to take into account the consequences of its refusal for [the teacher].’

Under section 65A(3) of the Fair Work Act, an employer may only refuse a request if:

  • the employer has discussed the request with the employee and genuinely tried to reach agreement accommodating the circumstances which gave rise to the request;
  • there has been no agreement;
  • the employer has had regard to the consequences of the refusal on the employee; and
  • the refusal is on reasonable business grounds.

The Full Bench held that Commissioner Matheson had focused on whether the School had reasonable business grounds to refuse the request, and did not resolve ‘important questions’ about the School’s failure to meet the other requirements in section 65A(3).

In particular, it found the School had not met its ‘positive obligation’ to consider the personal consequences that the teacher would experience as a result of its refusal of the request.

The Full Bench stated:

‘In our view, the evidence establishes that the discussions which were held were about alternatives offered by the employer based on its business needs and did not include any consideration of the consequences of refusing the arrangement on [the teacher].’

It went on to say:

‘In the context of the significance of the right to request flexible working arrangements, the circumstances in which it can be exercised, the focus of the procedural requirements relating to genuinely trying to reach agreement, and the specification of the matters that must be taken into account, the importance of the written response required by s 65A(1) cannot be understated.’

Ultimately, the Full Bench determined that because the School had not properly considered the consequences for the teacher, the School was not permitted to refuse the teacher’s request. The Full Bench required the School to implement the arrangement requested by the teacher for Term 2 of 2025.

How Justitia can help

Our team assists employers to manage their obligations with respect to FWA requests, including in the education sector, where the nature of student-facing roles (in particular) gives rise to operational challenges.

Our team can assist your organisation with navigating requests for FWAs, ensuring you meet the requirements of the Fair Work Act and provide written responses in line with legislative requirements. We aim to resolve disagreements over flexible work requests at the workplace level, and to support our clients to minimise friction where requests cannot be accommodated.

If you would like help with any of the above, please get in touch with our friendly team at info@justitia.com.au.

And if you would like to access our previous updates on FWAs, you can access them here, here and here.

This is general information only, is current as at 30 April 2025 and may not be applicable to your organisation or situation. It is not a substitute for legal advice and it is important that you obtain specific advice.