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Naden Case Raises the Bar: Employers Must Fully Justify Flexible Work Refusals

This Full Bench decision of the Fair Work Commission provides clarification on the application of section 65A of the Fair Work Act 2009 (Cth), which sets out the conditions under which an employer may lawfully refuse a request for flexible working arrangements.

• Ms Elizabeth Naden, a long-term teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School in Pymble, requested to return from parental leave on a part-time basis for Terms 1 and 2 of 2025.


• The employer declined the request unless she agreed to return solely as a classroom teacher, excluding the REC role until resumption of full-time work.


• The refusal became the subject of a dispute under the Catholic Schools Broken Bay Enterprise Agreement 2023, which incorporates the flexible work provisions from the National Employment Standards (NES).

• At first instance, the Commission found the refusal to be valid, accepting the employer had reasonable business grounds, including concerns about student outcomes, leadership continuity, and workload on others.

• On appeal, the Full Bench found that the employer did not comply with all four conditions set out in s.65A(3), and therefore was not entitled to refuse the request.


• The Commission confirmed that all four elements under s.65A(3) must be met before an employer can lawfully refuse:
  
  
  
  • The employer must discuss the request with the employee;
  
  
  • Must genuinely try to reach agreement;
  
  
  • Must have regard to the consequences of refusal for the employee;
  
  
  • And the refusal must be on reasonable business grounds.
  
  
  
  

The Commission concluded that while the first two conditions were met and reasonable business grounds were argued, the employer failed to demonstrate that it had regard to the consequences of refusal for the employee (as required by s.65A(3)(c)). The written response to the request, provided 82 days after submission, made no mention of this requirement.

As a result, the employer's refusal was not valid under the legislation, and the Commission ordered that Ms Naden be permitted to return to work on her requested part-time arrangement for Term 2, 2025.

This decision reaffirms that an employer cannot lawfully refuse a flexible work request unless it complies with every element of s.65A(3). The Full Bench made clear that s.65A(3) operates cumulatively — each of the procedural and substantive steps must be satisfied. This raises the bar for employers by confirming that compliance cannot be partial or assumed.

The Commission also emphasized the importance of the written response under s.65A(1) and s.65A(6), which must include details of the refusal and how the grounds apply to the employee’s specific circumstances.

Employers should ensure that:

• Requests are responded to in writing within 21 days;


• All four requirements of s.65A(3) are actively addressed;


• Written responses explicitly show consideration of the employee’s circumstances and the consequences of refusal;


• Any refusal is based on clearly articulated and supportable business grounds.

This case demonstrates how procedural shortcomings — even where business grounds exist — can result in a refusal being deemed invalid under the Fair Work Act.

Disclaimer: This summary is provided for general information purposes only and does not constitute legal advice. Employers and employees should seek independent legal advice to ensure compliance with their specific obligations under the Fair Work Act 2009 and any applicable enterprise agreements or workplace policies.