Natasha Lynham v Australian Taxation Office
[2025] FWC 560
•24 FEBRUARY 2025
| [2025] FWC 560 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.65B - Application for a dispute about requests for flexible work arrangements
Natasha Lynham
v
Australian Taxation Office
(C2024/7857)
| COMMISSIONER SIMPSON | BRISBANE, 24 FEBRUARY 2025 |
Application to deal with a dispute about the right to request for flexible working arrangements - application dismissed
On 5 November 2024, Ms Natasha Lynham (Lynham / the Applicant) applied to the Fair Work Commission (the Commission) under s.65B of the Fair Work Act 2009 (the Act) in relation to a dispute about requests for flexible work arrangements with her employer, the Australian Taxation Office (the Respondent / the ATO). The Respondent objects to the jurisdiction of Ms Lynham’s application.
The matter was originally listed for a conference on 18 November 2024 and subsequently was adjourned and relisted for Tuesday 26 November 2024. The Applicant appeared on her own behalf at the conference, and a lawyer from the ATO’s Office of General Counsel appeared for the Respondent. The Respondent raised its jurisdictional objections in the conference. At the end of the conference, I indicated that if the Applicant wished to press her application, she was invited to make submissions on her application’s jurisdiction within s.65B. Parties were also reminded in writing that I would be commencing a period of leave shortly and any submissions as to jurisdiction were invited to be provided prior. On 2 December 2024, the Respondent provided its submissions articulating its jurisdictional objections. My chambers is not in receipt of any submissions from the Applicant.
For the reasons below, I have decided the application should be dismissed.
Background
Ms Lynham commenced her employment with the ATO on 4 July 2023. In her Form F10C Application, Ms Lynham attested to verbally requesting to record meetings for minute taking purposes in early 2024 after her supervisor expressed that she was failing to meet expectations regarding minute taking. She attested to making written requests by email on or around 7 June 2024 (attaching a General Practitioner’s written request) and 28 June 2024 (attaching a psychologist’s written request). In her application, Ms Lynham described her supervisor verbally denying her first request, after which she attempted to offer alternatives, which were not followed up. She stated her request was later denied again in an email from her supervisor, after which she replied to her supervisor to indicate she was in fact comfortable with disclosing her relevant diagnosed disability that grounded her request. She says the Respondent did not reply to this.
Ms Lynham described her final request including 18 accommodations, and that her supervisor had indicated prior to Ms Lynham’s leave that the ATO was unlikely to support the request to record meetings due to privacy and security reasons.
In her application, Ms Lynham also provided an outline of discussions about the duty to take minutes and disagreements about this with her employer and/or supervisor. She also made submissions, with reference to the ATO Enterprise Agreement 2024, that the allocation of the responsibility to record meeting minutes was not an urgent or temporary duty, was below her classification level and outside of her specified duties.
Respondent’s submissions on jurisdictional objections
The Respondent submitted the Commission does not have jurisdiction to hear the matter as a dispute about flexible working arrangements, both on the application of s.65 as well as the application’s facts.
The ATO acknowledged s.65 of the Act establishes an entitlement to certain employees to request flexible working arrangements, specifically with reference to s.65(1).
The ATO submitted the provision’s ordinary meaning, and the note accompanying s.65(1), focusses on enabling eligible employees to re-arrange when and where they would undertake their employment. The Respondent’s submissions referred to passages within the Explanatory Memorandum to the Fair Work Bill 2008,[1] and submitted the Explanatory Memorandum makes clear the section’s intent was to enable eligible employees to seek flexibility around when and where they performed their duties. The ATO noted subsequent legislative amendments to s.65 have clarified the categories of individuals who can access the entitlement to make a request for a change in working arrangements, but have not otherwise changed the provision’s character.[2]
It was the ATO’s submission that while Ms Lynham has used the Commission’s form relating to disputes about flexible work, her application’s substance invites the Commission to consider a request to record meetings, not a request relating to changing hours, pattern or location of work as s.65 of the Act expressly contemplates. The ATO submitted the Applicant instead seeks changes to the manner in which they perform duties through consideration of reasonable adjustments by the Respondent. The ATO also referred to s.595(1), by which the Commission is empowered to deal with a dispute only if express authorisation arises from the Act. Although the Respondent noted the Commission’s broad powers to conduct matters before it arising from Chapter 5 of the Act, the application’s subject is not related to a request for a flexible work arrangement, and on that basis, the ATO submits the application goes beyond Division 4 of Part 2.2 of the Act and its operation such that the Commission does not have jurisdiction to assist in this matter.
In relation to the ATO’s submission that the Applicant has not made a request capable of the Commission’s consideration at this time, the Respondent noted the Applicant commenced employment with the Respondent on 4 July 2023, and became entitled to make a request capable of enlivening procedures in Division 4 of Part 2.2 of the Act on 4 July 2024, but also noted the Applicant has not attended work since 3 July 2024.
The ATO also argued Ms Lynham has not provided specificity as to a request or accompanying decision for which she seeks the Commission’s assistance. The ATO noted Ms Lynham claims in her application she made a verbal request in early 2024, which the ATO argued does not meet the formal requirement for a valid request to be made in writing, pursuant to s.65(3)(a) of the Act.
The ATO also noted Ms Lynham’s application describes that she had requested a written response from a ‘Working Well representative’ of the Respondent, after which her supervisor ‘begrudgingly sent an informal email back and stated that because they gave it verbally they didn’t think [she] needed any other response …’. In response to this, the ATO acknowledged receiving a request for reasonable adjustments on 12 June 2024 in an email with a subject line including the words ‘Reasonable Adjustments’ and in which the Applicant stated, inter alia, “I have been encouraged to reach out to request a reasonable adjustment for my disability …”. To the extent that that request is what the Applicant described, the ATO submitted the request is, prima facie, a request for reasonable adjustment and not a flexible work arrangement request. The ATO also submitted as at 12 June 2024, the Applicant was not entitled to make a request to which procedural obligations arise for the employer pursuant to s.65(2)(a) of the Act.
The ATO noted Ms Lynham’s application referring to her requests made on 7 June 2024 and 28 June 2024, and contended those dates are dates of correspondence from the Applicant’s treating practitioners, and the ATO is not aware of any flexible work arrangement requests made by the Applicant on either of those dates as set out in the application, or otherwise.
In summary, the ATO submitted the character of the Applicant’s request is not a flexible work arrangement, the Commission does not have jurisdiction to consider the matter, and the Applicant has not identified a request capable of the Commission’s assistance which satisfies formal requirements of s.65.
The ATO contended, at present, that the Commission does not have particulars available to it from the Applicant around any flexible work arrangement request purportedly made pursuant to s.65 of the Act. The ATO also argued (as at its submissions on 2 December 2024) that discussions remain ongoing as to the Applicant’s personal circumstances and how the Respondent can best support the Applicant to undertake her role’s inherent requirements. The ATO also contended it remains open to Ms Lynham to make a flexible work arrangement request to the ATO, who has internal mechanisms available if Ms Lynham seeks review of any decisions made, to try to resolve the matter at a workplace level.
The ATO therefore submitted it is open to the Commission to dismiss the application pursuant to s.587 of the Act, including on the basis the application is not made in accordance with the Act for want of a valid request being made under s.65 of the Act. The ATO also argued it would be open to the Commission to do so without formally deciding on the jurisdiction of the Commission in this matter.
Relevant legislation
Section 65 of the Act provides as follows:
65 Requests for flexible working arrangements
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(aa) the employee is pregnant;
(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing family and domestic violence;
(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing family and domestic violence.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part‑time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b) for a casual employee—the employee:(i) is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and
(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
(2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment changed under Division 4A of Part 2‑2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
Section 65A of the Act provides as follows:
65A Responding to requests for flexible working arrangements
Responding to the request
(1) If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.
(2) The response must:
(a) state that the employer grants the request; or
(b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the request—set out the agreed change; or
(c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).
(3) The employer may refuse the request only if:
(a) the employer has:
(i) 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
(b) the employer and the employee have not reached such an agreement; and
(c) the employer has had regard to the consequences of the refusal for the employee; and
(d) the refusal is on reasonable business grounds.
Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).
(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee’s working arrangements if the employer would have reasonable business grounds for refusing a request for the change.
Reasonable business grounds for refusing requests
(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:
(a) that the new working arrangements requested would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.
Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).
Employer must explain grounds for refusal
(6) If the employer refuses the request, the written response under subsection (1) must:
(a) include details of the reasons for the refusal; and
(b) without limiting paragraph (a) of this subsection:(i) set out the employer’s particular business grounds for refusing the request; and
(ii) explain how those grounds apply to the request; and
(c) either:
(i) set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or
(ii) state that there are no such changes; and
(d) set out the effect of sections 65B and 65C.
Genuinely trying to reach an agreement(7) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.
Section 65B of the Act provides as follows:
65B Disputes about the operation of this Division
Application of this section
(1) This section applies to a dispute between an employer and an employee about the operation of this Division if:
(a) the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and
(b) either:(i) the employer has refused the request; or
(ii) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 65A.
Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).
Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).
Resolving disputes
(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.
FWC may deal with disputes
(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.(4) If a dispute is referred under subsection (3):
(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and
(b) the FWC may deal with the dispute by arbitration in accordance with section 65C.
Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).
Representatives
(5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:
(a) resolving the dispute; or
(b) the FWC dealing with the dispute.
Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).
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.”
Consideration
The Applicant has not taken up the opportunity to file a submission in response to the Respondent’s jurisdictional objection. On the material before the Commission, it is clear the Applicant became capable of making a request for a flexible work arrangement from 4 July 2024. The correspondence between the parties up to that point did not amount to a request for a flexible work arrangement within the meaning of s.65 and therefore the Commission does not have jurisdiction to consider the matter at this stage.
The ATO contended in its submission that discussions remain ongoing as to the Applicant’s personal circumstances and how the Respondent can best support the Applicant to undertake her role’s inherent requirements. It would be open to Ms Lynham to make a new application to the Commission at the point the legislative requirements have been met.
Conclusion
In these circumstances, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the Applicant’s application for its lack of reasonable prospects of success pursuant to s.587(1)(c) of the Act.
An order to that effect will issue with this decision.
COMMISSIONER
[1] Explanatory Memorandum to the Fair Work Bill 2008 (Cth), [11], [26], [259], [270] – Illustrative Example.
[2] Fair Work Amendment Act 2013; Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021; Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022; Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
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