Flexible work after parental leave: FWC decision explained

The recent Fair Work Commission (FWC) decision in Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWCFB 82 has brought renewed attention to the rights of employees seeking flexible working arrangements. This case involved an employee returning from parental leave who sought approval to work part-time during the first two terms of the school year, a request that was refused by her employer.

However, the FWC rejected the refusal, emphasising the school’s failure to consider the significant impacts of its decision on the employee. This decision underlines the importance of employers balancing operational needs with the personal circumstances of their employees when considering requests for flexible work.

Here, our experts explain the details of this case, the laws governing flexible working requests, and why businesses must adhere to strict processes when considering a flexible working arrangement request.

Flexible working arrangements: what are the relevant laws?

The Fair Work Act 2009 (Cth) (FW Act) sets out several circumstances where an employee can request a flexible working arrangement, including where the employee is pregnant, over the age of 55, or caring for a school-aged or younger child. The employee must also have been employed by the employer for at least 12 months, and if they’re a casual employee, be regularly and systematically engaged to be eligible.

Under the FW Act, an employer can only refuse a request where:

• the employer has:
• discussed the request with the employee; and

(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

• the employer and the employee have not reached such an agreement; and
• the employer has had regard to the consequences of the refusal for the employee; and
• the refusal is on reasonable business grounds.

Background of this case

Elizabeth Naden was a teacher at Sacred Heart Primary School, Pymble, working in an executive position as the Religious Education Co-Ordinator (REC). Ms Naden took a period of parental leave in 2024, and when she was due to return to work in 2025, she made a flexible working request to work on a part-time basis.

The proposal was to work a three-day week, Wednesday to Friday, for Terms 1 and 2 of 2025 and then return to full-time work in Term 3 of 2025. In responding to the employee’s request, the employer proposed other options for her return to work. While the employer said it could accommodate the part-time arrangement, Ms Naden would need to forfeit her executive duties as REC and return to being a school teacher only. Ms Naden rejected this alternative arrangement based on the financial impact it would have on her, namely the reduction in pay due to her not performing the REC duties.

As a result, no agreement was reached between the employee and employer, and the employer ultimately refused the request based on business grounds and the potential impact on the quality of education provided to students.

Ms Naden disputed this refusal with the assistance of the Independent Education Union of Australia (IEUA). The employer was successful in the first instance decision of this dispute, but Ms Naden ultimately succeeded on appeal of that first instance decision.

Unpacking the first instance decision

The IEUA raised a dispute about the flexible working request on four grounds:

1. There was no written response to the request within the required 21 days;
2. There was no genuine consultation because there were no meaningful discussions or alternatives considered to accommodate the request;
3. The impact on the employee financially and her career wasn’t considered as part of the refusal; and
4. There were no reasonable business grounds for the refusal.

The FWC found that, although the employer didn’t respond in time, the employer had presented three alternatives to Ms Naden and had met the consultation requirement. While there was limited evidence that the employer discussed the consequences with Ms Naden, it was found that the refusal was on reasonable business grounds given the cost increase, decreased leadership, and impact on students and other staff workloads.

Appeal

The employee sought to appeal the FWC’s first instance decision on three grounds, being that the FWC erred:

1. when it refused to admit a piece of expert evidence;
2. when it failed to resolve the consultation issue; and
3. by mistaking facts and failing to consider all relevant considerations when determining that there were reasonable business grounds to refuse the request.

The employee also suggested that the appeal had public interest considerations about the correct way to determine flexible working arrangement disputes.

Permission to appeal based on the first and third grounds was denied.

The Full Bench of the Fair Work Commission (Full Bench) found that the alternatives to the employee’s flexible working request presented by the employer were found to only consider the employer’s business needs, rather than the consequences of refusal on Ms Naden.

The written response to the request given by the employer further served to demonstrate the lack of consideration by the employer of the impacts of the refusal on the employee. The Full Bench said the written response refusing to accept a flexible work request must also detail the reasons for refusal, and this, “includes not only that it (the employer) has had regard to the consequences of the refusal for the employee but how it has had regard to those matters”. The Full Bench also said, “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.”

The Full Bench ultimately determined that the employer wasn’t entitled to refuse the request because it hadn’t had regard to the consequences of the refusal for Ms Naden. It was required to implement the flexible working arrangement for Term 2 of 2025, in accordance with Ms Naden’s request.

In considering and responding to flexible working arrangement requests, employers must closely and carefully observe the requirements prescribed by the FW Act, namely section 65A. Should an employer disregard any of these requirements, it may mean that its refusal of a flexible working arrangement request is invalid. In large-scale businesses, compliance with these requirements may be difficult to oversee without comprehensive and legally compliant policies and procedures in place, as well as robust training. This FWC decision serves as a timely reminder for employers to review and evaluate their internal processes when it comes to considering and responding to requests for flexible working arrangements made by their workforce.

If any of this information has raised questions about flexible working requests for your business or you have another workplace matter you need assistance with, please reach out to our friendly Citation Legal team for a confidential chat.

About our author

Zaynab Aly is a Solicitor at Citation Legal. She has a particular interest in the retail industry and regularly provides advice on workplace matters to find solutions for clients.