The recent Full Bench decision in Naden v Catholic Schools Broken Bay [2025] FWCFB 82 delivers a timely reminder: employers must strictly comply with the procedural and substantive requirements in the Fair Work Act 2009 (Cth) (FW Act) when responding to flexible work requests by employees.
The case reinforces that it’s not enough for employers to believe they have reasonable business grounds—they must also follow the proper process under s 65A of the FW Act to lawfully refuse a request.
Background
Ms Elizabeth Naden, a long-serving teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School in Pymble (School), submitted a flexible work request to return part-time after parental leave under the Catholic Schools Broken Bay Enterprise Agreement 2023, which mirrors the provisions of the FW Act. The employee proposed to job-share the REC role and work three days per week in Terms 1 and 2 of 2025, before resuming full-time duties in Term 3.
The School expressed concern about approving Ms Naden’s request, noting that it could not provide flexible work arrangement for executive roles, and instead offered her a classroom teacher position during that period. On 12 December 2024—82 days after the request—the School formally declined her proposal, citing adverse impacts on student outcomes, leadership continuity, the workload of other staff, and staffing costs.
Ms Naden disagreed and referred the matter to the Fair Work Commission under s 739 of the FW Act.
Legal requirements for responding to flexible work requests
Employees have a right to request flexible work under the National Employment Standards (NES) in the FW Act if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being 55 or older, experiencing family/domestic violence, or providing care to someone experiencing family/domestic violence.
For an employer’s refusal to be valid, all elements of s 65A(3) must be met. It is only lawful to refuse a request if:
- The employer has discussed the request with the employee, and genuinely tried to reach agreement with the employee about changes to accommodate their circumstances.
- No agreement has been reached.
- The employer has had regard to the consequences of the refusal for the employee.
- The refusal is on reasonable business grounds
- The employer provides the employee with a written response within 21 days of receiving the request.
‘Reasonable business grounds’ for refusing a request
Section 65A(5) of the FW Act outlines a non-exhaustive list of what may constitute “reasonable business grounds” to refuse a flexible work request.
These include:
- excessive cost;
- lack of capacity or impracticality in rearranging or recruiting staff;
- significant loss in efficiency or productivity; or
- a serious negative impact on service delivery.
Importantly, these grounds must be assessed in the context of the employer’s specific circumstances—such as the size and nature of the organisation—which may influence whether such grounds are objectively reasonable under s 65A(3)(d) and (4). For example, a smaller school with limited staff may have less capacity to accommodate a job-share arrangement.
FWC Full Bench Decision
The School’s decision to refuse the request was upheld at first instance. However, on appeal, the Full Bench overturned that decision. The key failure? The School did not demonstrate that it considered the personal impact of the refusal on Ms Naden—a specific and mandatory requirement under s 65A(3) of the FW Act.
As the Full Bench explained (at [47]):
“The respondent… was not entitled to refuse the request unless [it] had regard to those consequences… The evidence did not establish that the respondent had regard to those consequences when it refused the request.”
Ultimately, the Commission found that the refusal was not lawful. The practical effect: Ms Naden should have been permitted to return part-time in accordance with her flexible work request.
Key lessons for employers
This case highlights three critical lessons for employers and school leaders considering flexible work requests:
- Strict compliance is non-negotiable: Even if business reasons exist, a refusal will be invalid if any procedural step is skipped—particularly failing to consider the employee’s personal circumstances. Here, the employee had secured childcare for three days per week until term 3, and declining her request would have had the effect of depriving her of her leadership role.
- Timing matters: The School took 82 days to respond—well beyond the 21-day statutory deadline. While not the main basis for the decision, this delay undermined its case and shows that lateness can damage credibility.
- Dispute pathways are now broader: Since June 2023, employees can escalate flexible work disputes to the FWC, even outside of enterprise agreements. This expanded access increases exposure for employers that don’t manage requests lawfully and transparently.
How We Can Help
Our Workplace Relations team supports employers with:
- Assessing and responding to flexible work requests.
- Drafting compliant correspondence and documentation that properly addresses all relevant factors in an objective manner.
- Training leadership teams on their legal obligations and best practice when responding to flexible work requests.
We can help you make decisions that are both legally sound and practically workable—reducing risk while supporting staff wellbeing.
Contact us
Please contact us if you would like further information on how we can assist.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.