A recent Fair Work Commission (FWC) case has seen an interesting twist regarding a flexible work dispute.
In Kelly Foster v National Australia Bank [2025] FWC 959 (7 April 2025), FWC held that it has no power under the Fair Work Act’s flexible work dispute provisions to deal with a National Australia Bank worker’s challenge to the cancellation of her working from home flexibility arrangement due to a lack of jurisdiction and after she failed to comply with its terms anyway.
What happened
The employee sought to work in her local branch one day a week, and in the Brisbane office once a month, and to work from home the rest of the time, for a full year.
She requested the flexible working arrangement on the basis that she had an “informally medically assessed mental illness” and is the primary carer of her school-aged daughter, who has been diagnosed with a mental illness.
A NAB people leader approved the request in December last year, stating on the application form that there would be “no impact to the business” and that allowing her to work from home allows her, in fact, “to focus and complete her work in a more efficient manner, than in a busy office environment”.
The NAB later terminated the arrangement in February, however, as its record of her swipe card use allegedly revealed she failed to comply with the requirement to attend its Brisbane office once a month.
The worker applied to the FWC under the Fair Work Act’s s65B flexible work dispute provisions to challenge the decision.
The decision
Deputy President Nicholas Lake said the primary issue involved whether there had been a “refusal” to grant her request. As the bank had in fact granted her flexible working arrangement and later terminated it, he held that the dispute application “fell beyond the jurisdiction of s65B and should be dismissed”.
“The [NAB] could not have refused a request where that request had already been granted and formalised,” he said.
“Therefore, there was no refusal of a FWA request so as to enliven the Commission’s jurisdiction to deal with the dispute under s65B.“
The Deputy President stated, “I note also that the legislation is silent on the form in which an arrangement agreed between an employer and employee may take, with good reason,” he continued.
As flexible working arrangements are “designed to accommodate a range of circumstances”, he said “prescriptively outlining the terms of these arrangements would inhibit the flexibility they are intended to provide”.
Deputy President Lake said there is nothing to “prevent an employer from providing that an arrangement may be terminated before its expiry date”, including if an employee does not comply with the agreed terms.
Grounds to pursue new request
Deputy President Lake noted the worker is entitled to make a new FWA request as the carer of a school-aged child with a diagnosed mental illness.
If the NAB refuses the request, or does not respond within writing in 21 days, he said she can, once again, “attempt to resolve the dispute at a workplace level and then refer the dispute to the Commission”.
Entitlement to terminate FWA “a separate issue”
The Deputy President further observed that while s65 and s65A “create a right to request a flexible working arrangement”, there is “no positive right to have that request granted and no positive right that once granted, the arrangement should continue in perpetuity”.
Whether the worker “did in fact fail to attend as prescribed in the arrangement” and whether the NAB had an entitlement to terminate it is “a separate issue”, he said.
The deputy president said the worker might be able to raise these issues “as a grievance under a s739 dispute“, which is referring to the model term for dealing with disputes for enterprise agreements.
Key learnings for businesses
Agreements for flexibility (such as flexible hours and working from home) should not be set in stone.
We recommend that any flexibility agreement is entered into on a ‘trial’ basis initially to ensure that the arrangement is workable for both employer and employee. Even after an initial trial period, agreements can be put in place for periods of time and should include an ability for the employer to cease the arrangement on reasonable grounds during the period.
Setting expectations (when an employee will be available online, when they will be present in the workplace, etc) is essential, as is monitoring and upholding those expectations.
Flexible work arrangements can be a powerful employee engagement and retention tool, however, consistent and fair management is required. And as with every relationship, communication is paramount.
If expectations are not being lived up to, or things are not working due to unplanned factors, having healthy, solutions-focused discussions early is key to either being able to continue, or respectfully cease, flexible working arrangements.
Of course, this arrangement is different to when a flexibility arrangement is locked into a Contract of Employment with an employee. Where flexible hours or working from home is part of the terms and conditions of an employee’s engagement and is written into a contractual agreement, care must be taken before making a change to prevent breach of contract.
Give us a call if you need assistance with navigating flexible working arrangements. We have extensive experience in assisting employers, across multiple sectors, achieve mutually beneficial arrangements.