Under the National Employment Standards (NES) an employee in certain circumstances has the right to request flexible working arrangements (FWA). Since June 2023, employees can lodge an application to the Fair Work Commission (FWC) to resolve disputes relating to FWA requests where:
In Foster v National Australia Bank [2025] FWC 959, the FWC dismissed an employee’s application to resolve a dispute about FWAs, finding that it had no jurisdiction to deal with matters where an employee’s FWA was approved but later terminated due to non-compliance.
The employee applied for a FWA with National Australia Bank (the Employer) in December 2024.The employee sought to work from the local bank branch for one day a week and to attend the Brisbane office once a month and to otherwise work from home.
The employee’s FWA request was made on the basis that she:
The Employer approved the FWA request, which was to be in place for a period of 12 months.
In February 2025, the Employer generated a report of swipe card usage and noted that the employee had not been attending the Brisbane office as agreed under the FWA. As a result, the Employer terminated the FWA.
The employee made an application to the FWC under s65B of the FW Act seeking that the FWC resolve a dispute regarding the FWA.
The FWC raised that the application fell outside of the jurisdiction of s65B and sought submissions from the parties.
The Employer submitted that the application be dismissed because the employer had:
The FWC held that the issue to be determined was whether there was a “refusal” of the FWA request as claimed by the Applicant. The FWC found that there was no refusal by the Employer given the FWA’s request was approved and formalised.
The FWC also commented that although s65 of the FW Act grants an employee the right to make a FWA request, there was no obligation on the employer to grant the request or, once granted, allow the arrangement to continue indefinitely. The FWC further stated that there was nothing to prevent an employer from terminating a FWA before its expiry date in certain circumstances, including where the employee had not complied with the agreed terms of the FWA.
The FWC also noted that the issues of whether the employee failed to comply with the FWA and whether the Employer was entitled to terminate the FWA were not within the jurisdiction s65B of the FW Act.
Finding that there was no refusal of a FWA request and there was no failure to respond within 21 days, the FWC concluded that the only issue present was the termination of the existing agreement, of which the FWC had no jurisdiction to deal with under s65B of the FW Act.
Accordingly, it dismissed the employee’s application.
The FWC commented that it would be open for the employee to make another FWA request and that if the Employer refused, or did not respond in writing withing 21 days, then the employee may then attempt to resolve the dispute with her workplace, and if that was not successful she could then make an application to the FWC to deal with the dispute.
This decision provides some helpful guidance to employers in relation to FWA requests and when the FWC will be able to deal with disputes in relation to FWA requests.
Where an FWA request has been approved, the decision also confirms that employers are entitled to terminate a FWA in circumstances where the employee fails to comply with the terms.
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