Hussain Tahir v Mars Australia Pty Ltd Summary

[2025] FWC 2504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.65B - Application for a dispute about requests for flexible work arrangements

Hussain Tahir
v

Mars Australia Pty Ltd

(C2025/6859)

COMMISSIONER HUNT

BRISBANE, 26 AUGUST 2025

Application to deal with a dispute about the right to request for flexible working arrangements – Applicant no longer employed by Respondent – application has no reasonable prospects of success – application dismissed.

On 21 July 2025, Mr Hussain Tahir made an application to the Fair Work Commission (the Commission) under s.65B of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute about the right to request for flexible working arrangements. The Respondent to the application is Mars Australia Pty Ltd (the Respondent).

Mr Tahir was employed by the Respondent as a Smart Factory Lead as part of the Respondent’s digital transformation program. The role required Mr Tahir to perform his duties in Bathurst, New South Wales. Upon acceptance of the offer of employment in February 2024, Mr Tahir relocated from Hong Kong to Bathurst to perform the role.

In June 2025, Mr Tahir wrote to the Respondent, seeking approval for a relocation to the Respondent’s Brisbane site. Mr Tahir informed the Respondent that his pregnant wife had relocated from Bathurst to Brisbane and he was seeking to relocate in order to provide support to his wife. Mr Tahir was informed by the Respondent that his relocation request would not be approved due to a number of operational reasons. Mr Tahir then made this application to the Commission on 21 July 2025.

The matter was allocated to me, and I convened a conference of the parties on 11 August 2025. The dispute did not resolve, and a further conference was listed on 15 August 2025.

On 13 August 2025, the Respondent advised my chambers that Mr Tahir had resigned from his employment and would receive payment in lieu of notice such that his employment would conclude imminently. On 14 August 2025, I informed the parties that the conference listed the following day would be vacated. I invited Mr Tahir to consider discontinuing the matter before the Commission on the basis of his resignation.

Mr Tahir responded, confirming that while he had resigned from his employment, this did not reflect his willingness to withdraw the application. Mr Tahir declined to discontinue his application and requested that, in the event the Commission dismisses his application, written reasons be provided for any such dismissal.

On 15 August 2025, my chambers advised the parties that on account of Mr Tahir having resigned his employment, my preliminary view was that the application would be dismissed pursuant to s.587(1)(c) of the Act on the basis that the application has no reasonable prospects of success. No further response from Mr Tahir has been received.

Consideration

Section 587 of the Act provides as follows:

“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or
(b)       the application is frivolous or vexatious; or
(c)       the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a)       is frivolous or vexatious; or
(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Section 65B of the Act applies to disputes between employers and employees about requests for flexible working arrangements. Mr Tahir is no longer an employee of the Respondent. As such, his request for the Respondent for flexible work arrangements is now rendered futile. The Commission would be unable to make any orders in relation to the dispute under s.65C of the Act, such as an order that the Respondent grant Mr Tahir’s request. In these circumstances, the Commission has held that applications made under s.65B of the Act have no reasonable prospects of success.[1]

Accordingly, I am satisfied that Mr Tahir’s application has no reasonable prospects of success. The application is dismissed under s.587(1)(c) of the Act.

An Order [PR791065] to this effect will be issued.

COMMISSIONER

[1] See, eg, Tu v Centrecare Inc [2025] FWC 2233; McGuane v Metcash Trading Limited [2025] FWC 268.

Printed by authority of the Commonwealth Government Printer

In the case of Hussain Tahir v Mars Australia Pty Ltd, Mr Hussain Tahir applied to the Fair Work Commission (FWC) under section 65B of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute regarding his request for flexible working arrangements. The application was made against Mars Australia Pty Ltd (the Respondent), Mr Tahir's former employer, which had denied his request for relocation to the Respondent’s Brisbane site to support his pregnant wife. Mr Tahir made this application to the Commission after his request was rejected by the Respondent due to operational reasons. The application was dismissed by Commissioner Hunt, who found that Mr Tahir's application had no reasonable prospects of success because he was no longer employed by the Respondent.

The central legal issue before the Commission was whether Mr Tahir's application under section 65B of the Act had reasonable prospects of success, given that he had resigned from his employment and was no longer an employee of the Respondent. Section 65B of the Act pertains to disputes between employers and employees about requests for flexible working arrangements, but the Commission has consistently held that such applications have no reasonable prospects of success once the applicant is no longer employed by the Respondent. The Commissioner relied on previous decisions such as Tu v Centrecare Inc and McGuane v Metcash Trading Limited, which confirmed that the Commission would be unable to make any orders in relation to the dispute under section 65C of the Act. Accordingly, the Commissioner determined that Mr Tahir’s application was without merit and dismissed it pursuant to section 587(1)(c) of the Act.

Mr Tahir's application was dismissed by Commissioner Hunt on the basis that it had no reasonable prospects of success. The Commissioner reasoned that, as Mr Tahir was no longer employed by the Respondent, the application for flexible working arrangements was rendered futile. The Commission concluded that it could not make any orders in relation to the dispute as the employee was no longer in the employment of the Respondent. The Commissioner further noted that this outcome was consistent with previous decisions of the Commission which had similarly dismissed applications under section 65B of the Act in circumstances where the applicant was no longer an employee. The Commissioner's decision was informed by the authority of section 587(1)(c) of the Act, which allows the Commission to dismiss an application if it has no reasonable prospects of success. Consequently, an order dismissing Mr Tahir’s application was issued.

Hussain Tahir v Mars Australia Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established