1
Fair Work Act 2009
s.604—Appeal of decision
Peter Ridings
v
Fedex Express Australia Pty Ltd T/A Fedex
(C2024/5176)
DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT MASSON
MELBOURNE, 24 DECEMBER 2024
Appeal against decision [2024] FWC 1845 of Deputy President Lake at Brisbane on 12 July
2024 in matter number C2024/1129.
[1] Mr Peter Ridings (the Appellant) has lodged an appeal under s 604 of the Fair Work
Act 2009 (Cth) (FW Act) for which permission to appeal is required against a decision1 of
Deputy President Lake issued on 12 July 2024 in matter number C2024/1129 (the Decision).
The Decision dealt with an application made by Mr Ridings on 29 March 2024 under s 65B to
resolve a dispute with his employer Fedex Express Australia Pty Ltd T/A Fedex (the
Respondent) regarding a flexible working arrangement.
[2] The matter was listed for permission to appeal and merits of the appeal. Directions were
issued on 6 August 2024 for the filing of submissions and material with the matter listed for
hearing on 17 September 2024. Both parties filed material in advance of the hearing pursuant
to the Directions. At the hearing, the Appellant appeared on his own behalf while the
Respondent was represented by Ms Tirado.
[3] The background to this appeal may be shortly stated. The Applicant who has been
employed since April 2013 has a wife and two children who each have disabilities that require
him to provide care for them. Since 2019 the Appellant has worked on a part-time basis for four
days per week and has largely worked from home due to a range of circumstances including
two previously approved flexible working arrangements, workplace attendance restrictions
arising from the COVID-19 pandemic and through the use of personal and annual leave.
Confronted with the Respondent’s requirement that he return to the office for at least two days
a week in late 2022, the Appellant made a third and then fourth flexible working arrangement
request, firstly in July 2023 through which he sought to only work in the office one day per
week and then again in January 2024, through which he sought to work from home on a full-
time basis. Both of these requests were rejected by the Respondent. It was the rejection of the
latter request which prompted the Appellant’s s 65B application to the Commission.
The Decision
[2024] FWCFB 473
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1845.pdf
[2024] FWCFB 473
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[4] The Deputy President set out the factual background to the dispute before him including
as follows.
[5] The Appellant commenced employment with the Respondent on 13 April 2015 as a
Clearance Classifier working in the Respondent’s Brisbane office on a full-time basis, his
working hours being 6am to 2pm five days per week. A flexible working arrangement request
(the First Request) made by the Appellant on 1 July 2019 to reduce his working hours to that
of part-time, working four days per week, was agreed to by the Respondent. The revised
working hours were that of 9.45am to 6pm in the office four days per week. When COVID-19
restrictions and lockdowns were introduced in 2020, the Respondent required its employees to
work from home if they could, with which direction the Appellant complied, working remotely
from home four days per week from April 2020 to September 2022.2
[6] While the First Request expired on 1 December 2019, it continued in place through an
informal agreement until the Appellant made a further request (the Second Request) in October
2021 to work 30.4 hours over four days per week. The Second Request was approved following
which the Appellant worked all his hours from home during the COVID-19 period of
restrictions. The following documents were provided by the Appellant in support of the Second
Request regarding the medical condition of his wife and two daughters:
• Medical Certificates confirming that his children have autism dated 20 June 2014 and
10 November 2015.
• A Guidance Report regarding one of his children’s conditions dated 13 December
2018 identifying that the child had extremely low intellectual and adaptive functions,
and their support needs were extremely high.
• A Psychologist Report dated 14 August 2020 identifying that Mrs Selina Ridings
requires substantial support because of her autism spectrum disorder.3
[7] With the waning of the COVID-19 pandemic and restrictions, the Respondent moved to
require employees to return to the office around August/September 2022. This was supported
by the introduction of a hybrid work model which required employees to return to the office for
a minimum of two days per week. At that stage, the Appellant was working from home four
days per week and was advised that he would be expected to return to the office a minimum of
two days per week. Between September 2022 and July 2023, when the Appellant was required
to work two days per week in the office, he used various annual and personal leave entitlements
on days when he was required to work in the office.4
[8] The Respondent’s hybrid model was revised in June 2023 when the Respondent’s
Operations Manager advised Clearance Managers that employees would be required to work in
the office a minimum of three days per week. When it was clarified with the Appellant on 10
July 2023 that this requirement would also apply to part-time employees, the Appellant made a
further flexible working arrangement request (the Third Request) on 12 July 2023 in which
he sought to work from home three days a week and one day in the office. The following
medical information regarding the Appellant’s wife and children was furnished in support of
the Third Request:
• a Developmental Assessment Report dated 20 February 2013 for his youngest child.
[2024] FWCFB 473
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• a Guidance Report regarding one of his children’s conditions dated 13 December
2018.
• a Report from a Rheumatologist dated 19 August 2022 which contained information
on Mrs Ridings’ condition (Mrs Ridings is noted to have symptoms which are
associated with Ehlers Danlos Syndrome).
• a letter from a Clinical Psychologist dated 3 January 2023 to the NDIS seeking a
change in Mrs Ridings’ NDIS funding because of a change in circumstances.5
[9] The Third Request was declined by the Respondent on 1 August 2023 due to business
and operational requirements. In declining the Third Request, the Respondent offered the
Appellant the alternative of working two days per week from home and two days per week in
the office. The Appellant rejected that there were any productivity issues arising from him
working from home, sought further information from the Respondent on the claimed loss of
efficiency and productivity and stated that he would continue to use his personal and annual
leave entitlements to remain at home. Between 2 August and 18 September 2023, the Appellant
took annual leave on each Wednesday that he was required to attend the office. From 18
September to 23 December 2023 the Appellant was unable to attend the office following his
sustaining an injury to his ankle6.
[10] On 10 January 2024, the Appellant lodged a further flexible working arrangement
request (the Fourth Request) seeking to work from home on a full-time basis. Medical
information on the Appellant’s wife and children was again provided. It was similar to that
which was provided in support of the Third Request. The Respondent then unsuccessfully
sought additional information from the Appellant regarding the Fourth Request through further
correspondence. This culminated in a meeting on 9 February 2024 at which the Respondent
canvassed various alternative working hours arrangement options with the Appellant, each of
which were rejected by the Appellant. The Fourth Request was formally declined by the
Respondent on 23 February 2024 and the Appellant lodged his s 65B application with the
Commission that same day.7
[11] After setting out the background to the application, the Deputy President turned to
consider whether the Appellant was entitled to make a flexible working arrangement request to
the Respondent. In determining whether the Fourth Request was validly made, the Deputy
President considered the Full Bench authority of Jordan Quirke v BSR Australia Pty Ltd,8 in
which the Full Bench stated that five ‘discernible requirements in s 65 must be satisfied in order
for a request under s 65(1) to have been validly made’. The Deputy President summarised those
five requirements as follows:
1. Any circumstance under s.65 must apply to the Applicant. It must be a present
circumstance rather than an anticipated circumstance.
2. The employee’s desire for changed working must be because of the relevant
circumstances under s.65(1A) and the request for a change in working
arrangements must relate to it.
3. The employee has a minimum period of service of 12 months.
4. The request must be in writing.
[2024] FWCFB 473
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5. The request must set out the details of the change sought and the reasons for the
change.9
[12] The Deputy President concluded that the Appellant had a made a valid request to the
Respondent, stating:
“[37] The Applicant has a present circumstance where he is currently caring for his wife
with signs of Ehlers Danlos Syndrome and is diagnosed with Level 2 autism, he also has
two children who have an intellectual disability and Level 3 autism. There is sufficient
evidence to establish that his family are dealing with these conditions. I am also satisfied
that the Applicant is a carer under s 65(1A)(b) of the FW Act. Mr Ridings had been
working with FedEx for longer than 12 months and there is a reasonable expectation that
his employment will continue as a permanent part-time employee.
[38] The Applicant made a request in writing on 10 January 2024 and provided reasons
why he was seeking the arrangement. He received a final response from the Respondent
on 23 February 2024. FedEx have refused the request in writing. Given that the
employer has refused the request under s65B(1)(b)(i) of the FW Act, the Applicant has
made a valid application to the Commission.”10
[13] Having found that the Fourth Request was validly made, the Deputy President noted the
request was rejected by the Respondent and went on to consider whether the Respondent’s
refusal of the Fourth Request complied with the requirements of s 65A(3). After setting out that
provision, the Deputy President summarised the following requirements that must be met in
order for an employer to refuse a flexible working arrangement request:
“[45] A request means that an employer has the discretion to either approve or reject the
request. There are particular parameters which the employer can refuse a request. The
employers can refuse a request ‘only if’:
1. The employer discusses the request with the employee.
2. The employer genuinely tries and reach an agreement with the employee
about making changes to the employee’s working arrangements to
accommodate their circumstances.
3. Where the employer and employee have still not reached an agreement, the
employer may only refuse the request on reasonable business grounds.”11
[14] In considering whether the requirements of s 65A(3) had been met, the Deputy
President firstly found that there was no dispute that the Respondent had discussed the Fourth
Request with the Appellant.12 He then moved on to consider whether the Respondent had
refused the Fourth Request only after it had ‘genuinely tried to reach an agreement’ with the
Appellant, as required by s 65A(3)(a)(ii). In doing so, the Deputy President observed that an
employer can only take into account the relevant information before it, and that while the
Appellant referred to his increased carer demands during the proceedings, he had not provided
[2024] FWCFB 473
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the Respondent with any new documents when he made the Fourth Request, apart from a GP
certificate on 6 February 2024.13
[15] The Deputy President then set out the steps taken by the Respondent to try and
understand the Appellant’s specific carer demands before concluding that it had genuinely
attempted to reach agreement with the Appellant over his Fourth Request. The Deputy President
relevantly stated as follows:
“[59] The Respondent sought to understand the specific time constraints upon the
Applicant in his role as a carer. However, the Applicant was not forthcoming during this
process, wanting to record the meetings and was not available to meet in person. In the
end, the information provided by the Applicant lacked sufficient detail for the
Respondent to accept the request from the Applicant to work exclusively from home.
The medical certificate does not particularise in enough detail how his carer demands
have changed from his third request (1 day in the office and 3 days at home) to his fourth
request (4 days at home). The employer cannot consider what it does not know.
[60] The Applicant was not required to provide extensive evidence regarding his carer’s
duties but had to demonstrate what his carer responsibilities entailed and how it
impacted his ability to attend work in the office.
[61] The Respondent provided the Applicant opportunities to further explain his
circumstances when Mr Bilic followed up on 31 January 2024. Mr Bilic and Mr Michael
followed up the request again on 9 February 2024 through a meeting to better understand
his circumstances given that there was no update in his supporting documents or a
change in circumstances that were known to them. If Mr Ridings had provided this
information, the employer could have further considered different working
arrangements which were more suitable to Mr Ridings.
[62] I am satisfied that FedEx did try to genuinely attempt to reach agreement in
understanding the Applicant’s circumstances with the information before them.”
[16] The Deputy President then considered whether the Respondent’s refusal of the Fourth
Request was based on reasonable business grounds as defined in s 65A(5) of the FW Act, set
out those provisions and identified that the Respondent refused the request on the basis that
approving the request would result in a significant loss in efficiency or productivity (s
65A(5)(d)).14 The Deputy President accepted that the benefits of working in the office were
made out, but found the Respondent had failed in its 21 February 2024 response to account for
any detriment that would arise from granting the Fourth Request. The Deputy President
relevantly said as follows:
“[68] Although the benefits of working in the office are made out, it does not account for
any detriment. As part of the National Employment Standards, the purpose of flexible
working arrangements is to accommodate circumstances of individual employees if the
employer is in a position to do so. FedEx states that nil attendance in the office would
likely decrease efficiency and productivity. However, this was not flagged with Mr
Ridings on 21 February 2024 noting the following reasons:
[2024] FWCFB 473
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The Company is committed to in-person collaboration and interaction,
knowledge sharing, training, support and culture-building. In your role as a
Classifier, you benefit from having in person discussions with colleagues on
matters such as regulatory changes and problem shipments, engagement and
interaction that does not occur over Microsoft Teams. You also have the ability
to approach Brokers for advice regarding clearing a problem shipment. These
in person interactions relation to your role and responsibilities support more
productive and efficient working.
The Company’s Fit for Purpose hybrid working policy expected employees work
at least 3-days in office. Permanently working from home full time does not
support the Company’s hybrid working expectations for all employees.
Face-to-face presence allows teams to have an appropriate balance of digital
and physical interaction in the workplace.
Travelling to and from work is a requirement to fulfil your employment
obligations, and your travel time to the workplace is not unreasonable.
[69] If the argument was that the lack of interaction and collaboration would cause a
likely detriment to productivity and efficiency, it would need to be substantiated. For
instance, if the employee was not meeting targets, difficult to contact, and tasks were
not being performed to a specific standard while he or she was working remotely, it
would be a reasonable business ground to refuse the request. Another example could
have been the lost opportunity to assist an employee to improve performance through
collaboration and guidance if working from home 100% of the time. The evidence of
Mr Bilic and Mr Michael suggested that this was a potential issue. However, this was
never raised by FedEx refusing the Applicant’s request.”15
[17] The Deputy President also went on to conclude that the Respondent in refusing the
Fourth Request also failed to consider the Appellant’s personal circumstances in its reasoning,
stating that he was “not satisfied that the Respondent provided a sufficient explanation for why
the request was refused on reasonable business grounds on 21 February 2024.”16
[18] Having found that the Respondent’s refusal of the Fourth Request was not based on
reasonable business grounds, the Deputy President then identified that the Commission had
power to arbitrate the dispute pursuant to s 65C of the FW Act only if it was satisfied there was
no reasonable prospect of the dispute being resolved without the Commission making an order.
Having been so satisfied after unsuccessful conciliation of the matter, the Deputy President
proceeded to arbitrate the dispute pursuant to s 65C of the FW Act.17 In doing so he firstly
identified that in arbitrating a flexible working arrangement dispute, the Commission must take
into account ‘fairness between the parties’ as required under s 65C(2) of the FW Act and
observed that this requires a balancing of the needs of employers with that of the right of
employees to access flexible working arrangements under the National Employment Standards
(NES).18
[19] The Deputy President then identified the factors he considered in achieving the objects
of the FW Act including; the processes undertaken by the Respondent in reviewing the Fourth
[2024] FWCFB 473
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Request, the operational needs of the Respondent, the circumstances of the employee and the
gravity of those circumstances, any other factors that may be relevant to the practicality of any
order and finally, that any order should not be indefinite and should be subject to review.
Alternate flexible working arrangement options proposed by the Respondent were then set out
as follows:
“[76] The options that were presented by the Respondent are as follows:
1. The Applicant is to work 3 days at home and 1 day in the office in a week
which was proposed by the Respondent during conciliation. This was not
accepted by the Applicant.
2. The Applicant is to work his 4 days over a 5-day period, thus reducing the
hours worked per day, and thus work 3 days working from home, and 2 days
a week in the office with reduced hours (28.4 hours per week). This was
rejected by the Applicant.
3. The Applicant is to work 2 days at home and 2 days in the office in a week.
This was rejected by the Applicant.”19
[20] The Deputy President noted that the Applicant had not proposed a compromise in
relation to the above options and that the only option he (the Appellant) was prepared to
consider was that of working from home all four days per week.20 The operational
circumstances of the Respondent were then set out, relevantly including that its concerns
regarding the need for efficient informal discussions and increased collaboration and teamwork
would be met by adoption of its final proposed position of the Appellant working one day per
week in the office and three days from home. In then summarising the Appellant’s
circumstances, the Deputy President referred to the challenging and difficult circumstances the
Appellant faced in caring for his family, that he did not live far from the office and that the
Appellant’s change in circumstances which he sought to rely on for his Fourth Request were
not elaborated upon beyond the matters raised in the Third Request when the Appellant sought
to work from home three days per week with one day in the office.21
[21] The Deputy President then considered the practicality of implementing a trial of the
Appellant working on the basis of three days from home and one day in the office, as proposed
by the Respondent. He observed that the Appellant had not attended the office since 18
September 2023, had ‘avoided attending the office at all costs’ and been absent either without
reason or had used statutory entitlements in that period. The Deputy President also raised
concerns that the Appellant may not follow any order issued and thereby render the flexible
working arrangement ineffective. To address that concern the Deputy President decided to place
caveats in his order (the Order) to ensure the effectiveness of the flexible working
arrangement. The particular caveat was that while the Appellant was entitled to take statutory
leave on a day that he was due to attend the office, if the Appellant failed to attend the office
after two consecutive weeks, the Respondent would be able to lawfully direct the Appellant to
attend the office on a different day. The Deputy President then concluded by determining that
it would be appropriate to trial the arrangement over a three-month period as follows:
“[92] I Order the following:
[2024] FWCFB 473
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A. The flexible working arrangement lodged by the Applicant on 10 January 2024 is
not granted.
B. FedEx are ordered to make the specified changes in the employee’s working
arrangements.
• Mr Ridings may work from home for 3 days a week.
• Mr Ridings is required to work at the office for 1 day a week.
C. If:
• Mr Ridings does not attend the office for 2 consecutive weeks;
• there are performance concerns or
• there are genuine operational requirements which require Mr Ridings’
attendance.
FedEx may lawfully and reasonably request Mr Ridings to work at the office on
the days that he is permitted to work from home.
D. This Order will be valid for 3 months from the date of making this Order and will
expire on 12 October 2024 to allow the parties to review Mr Ridings’
circumstances and provides FedEx the opportunity to assess its operational
requirements.
E. If Mr Ridings wishes to extend or vary the flexible working arrangement of this
Order once it expires, he will need to lodge a new request in accordance with s.65
of the Act.
F. The Order is effective from 12 July 2024.”22
Grounds of appeal
[22] The Appellant’s Form F7 – Notice of Appeal includes an ‘Outline’ which is said to
disclose his grounds of appeal. From these, we discern the Appellant asserts:
(1) The Deputy President made errors of law by;
a. ordering the Appellant to return to the office despite finding that, in rejecting his
flexible working arrangement request, the Respondent failed to do so on
reasonable business grounds;
b. failing to allow the Appellant to work from home four days per week in
recognition of his full-time career responsibilities, contrary to the approach
adopted by Commissioner Platt in Gregory v Maxxia Pty Ltd23 (Maxxia); and
[2024] FWCFB 473
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c. ordering the Appellant to return to the office one day per week, the Deputy
President failed to uphold the rights of a full-time carer under both the Fair Work
Act 2009 and Anti-Discrimination Act 1992.
(2) The Deputy President made errors of fact by;
a. wrongly finding at [10] of the Decision that the Appellant took days off on leave
between September 2022 and July 2023 on days when he was required to attend
the office;
b. wrongly finding at [81] of the Decision that the Appellant had the assistance of
support workers through NDIS funding in respect of his wife Selina Ridings in
circumstances where her NDIS plan contains no funds for support workers;
c. wrongly finding at [84] of the Decision that the Appellant did not agree and had
not attended the office since 18 September 2023 when he had attempted to attend
the office between 24 April 2024 and 11 July 2024;
d. wrongly assuming that the WH&S issue that existed between 22 December 2023
and 24 April 2024 was that of a disputed Workcover (Comcare) accident claim
when in it was in fact an outstanding WH&S issue;
e. in finding that the Appellant was not interested in trying to return to the office
at [86] of the Decision, then imposing condition (C) in the Order;
f. in finding at [86] of the Decision that the Appellant had failed to demonstrate
that the arrangement of working one day per week in the office could work and
ignored the Appellants full-time carer responsibilities and that he was struggling
to attend the office;
g. by finding at [87] that the Appellant had expressed on 9 February 2024 that he
did not wish to ‘befriend his work colleagues’ which ignored the Appellant’s
evidence that he maintains regular contact with his work colleagues by email
and MS Teams;
h. by then contradicting himself at [88] of the Decision by stating that the Appellant
is not expected to befriend his work colleagues;
i. by taking into account at [88] of the Decision evidence that the Appellant was
less efficient and productive than his colleagues in circumstances where the
Appellant was not aware of any outstanding productivity or performance issues;
j. by finding at [39] of the Decision that there was no substantive change in the
circumstances of the Appellant in terms of his carer responsibilities between the
third and fourth flexible working arrangement requests; and
k. wrongly finding at [41] that the Appellant assumed he was entitled to a flexible
working arrangement request.
[2024] FWCFB 473
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Principles governing an appeal under s.604 of the Act
[23] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the primary
decision maker.24 There is no right to appeal, and an appeal may only be made with the
permission of the Commission. Subsection 604(2) requires the Commission to grant permission
to appeal if satisfied that it is in the public interest to do so. Permission to appeal may otherwise
be granted on discretionary grounds.
[24] The task of assessing whether the public interest test is met is a discretionary one
involving a broad value judgment.25 The public interest is not satisfied simply by the
identification of error, or a preference for a different result.26 In GlaxoSmithKline Australia Pty
Ltd v Makin a Full Bench of the Commission identified some of the considerations that may
attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles applied
appear disharmonious when compared with other recent decisions dealing with similar
matters...”27
[25] Other than the special case in s 604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been treated as justifying the grant
of permission to appeal include that the decision is attended with sufficient doubt to warrant its
reconsideration, and that substantial injustice may result if leave is refused.28
[26] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of
appealable error.29 However, as earlier stated, the fact that the Member at first instance made
an error is not necessarily a sufficient basis for granting permission to appeal.
Consideration
Errors of law
Ground 1a.
[27] By this first ground of appeal, we understand the Appellant contends that the Deputy
President erred at law by issuing the Order that he work in the office one day per week on a
three-month trial basis. The essence of this ground of appeal appears to be a contention that the
Deputy President erred by ordering the Appellant to attend the office one day a week because
this was inconsistent with the Deputy President’s finding that the Respondent’s rejection of the
Fourth Request was not supported by reasonable business grounds.
[28] The Appellant’s argument proceeds on a misunderstanding of the statutory requirements
and relationship between ss 65A, 65B and 65C.
[2024] FWCFB 473
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[29] Section 65A of the FW Act is concerned with the response of an employer to a flexible
working arrangement request and having found the Appellant’s Fourth Request was validly
made, the Deputy President was required to consider the Respondent’s response. Section
65(A)(1) requires that a written response must be provided by an employer within 21 days.
Section 65A(2)(a)-(c) then state that the written response must state either that the request is
agreed, or an agreement has been reached for an alternate flexible working arrangement or that
the request is refused.
[30] An employer may only refuse a request if it has complied with the requirements of s
65A(3) and s 65A(5). These requirements are:
• The employer has discussed the request with the employee (s 65A(3)(a)(i));
• The employer genuinely tried to reach agreement with the employee (s 65A(3)((a)(ii));
• No agreement has been reached between them (s 65A(3)(b));
• The employer has had regard to the consequences of the refusal on the employee (s
65A(3)(c)); and
• The refusal was based on reasonable business grounds (s 65A(3)(d)), as defined in a
non-exhaustive list set out at s 65A(5).
[31] The Deputy President considered each of these elements and concluded that the refusal
of the Fourth Request was not based on reasonable business grounds and that the Respondent
had not had regard to the consequences of the refusal on the Appellant.
[32] The dispute before the Deputy President was about a request validly made under s 65(1)
that had been refused. Consequently, s 65B applied to the dispute and the Deputy President
initially dealt with by means other than arbitration (s 65B(4)(a)) and when this was
unsuccessful, the Deputy President proceeded to arbitrate (s 65B(4)(b)).
[33] Section 65C of the FW Act sets out the requirements in respect of the Commission
dealing with a dispute by arbitration. In arbitrating a dispute of this kind the Commission is
permitted to make various orders, including that if the employer has refused the request, it may
make an order that the grounds of the refusal are taken to be reasonable business grounds (s
65C(1)(b)(i)) or an order that the grounds for refusal of the request are taken not to be reasonable
business grounds (s 65C(1)(b)(ii)). If the Commission is satisfied that the employer has not
responded or has not responded adequately, it may make an order that the employer takes
further steps as the Commission considers appropriate having regard to matters in s 65A (s
65C(1)(e)). Significantly, for present purposes, the Commission may also make orders that the
employer grant the request (s 65C(1)(f)(i)), or that the employer makes other specified changes
to the employee’s working arrangements (s 65C(1)(f)(ii)). The Commission may only exercise
these discretionary powers if it is satisfied that there is no reasonable prospect of the dispute
being resolved without making such an order (s 65C(3)). In the present case, the Deputy
President was so satisfied.
[34] What is readily apparent from a plain reading of the statutory provisions is that in
arbitrating a dispute under s 65C, the Commission is not compelled to make an order consistent
with a finding that it has made in respect of an employer’s refusal of a flexible working
arrangement request. The range of orders available to the Commission along with the
[2024] FWCFB 473
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requirement ‘to take into account fairness between the employer and the employee’ (s 65C(2))
indicates that there is a broader discretion conferred to the Commission including the weighing
of the interests of the employer and employee when arbitrating a dispute. In the present case,
the fact that the Deputy President found the Respondent’s refusal of the Fourth Request was
not supported by reasonable business grounds did not compel an order to be made that was
consistent with that finding. This is because the Deputy President was arbitrating the dispute
and not simply reviewing whether the Respondent had refused the request on reasonable
business grounds.
[35] We are not persuaded the Deputy President erred by making the Order in the form that
he did. The Deputy President was permitted to make an order under s 65C(1)(f)(ii) that made
specified changes, ‘in the employee’s working arrangements to accommodate, to any extent,
the circumstances mentioned in paragraph 65B(1)(a)’. The Order made by the Deputy
President specified changes to the Appellant’s working arrangements (other than the requested
changes). Those changes, which were to be implemented on a three-month trial basis, were that
the Appellant was required to attend and work in the office one day per week, thus permitting
him to continue working from home three days per week. It is noted that at the time of the
Fourth Request, the Appellant did not have an approved flexible working arrangement that
permitted him to work from home at all.30
[36] The Deputy President’s decision to make specified changes to the Appellant’s working
arrangements (other than the requested changes) involved the exercise of a discretion and was
for the reasons stated. In making that decision it is apparent that the Deputy President
considered a broad range of matters including the ‘challenging’ caring responsibilities of the
Appellant and the legitimate desire of the Respondent to maintain a level of face-to-face
professional contact with the Appellant. The Deputy President also considered there was a lack
of any flexibility on the part of the Appellant and that the best means of testing the workability
of the arrangement was to implement it for a limited trial period. This was a pragmatic and
sensible approach that balanced the interests of both parties, as was required of the Deputy
President. We are not persuaded that the Deputy President erred in his construction and
application of the relevant provisions of the FW Act or that his exercise of the available
discretion in arbitrating the dispute under s 65(C) miscarried.
Ground 1b.
[37] By this ground of appeal, the Appellant appears to contend that the Deputy President’s
decision to require him to attend the office one day per week despite his full-time caring
responsibilities was at odds with a finding of Commissioner Platt in Maxxia. Contrary to the
suggestion of the Applicant, Maxxia does not stand for the proposition that caring
responsibilities are a prima facie justification for working from home on a full-time basis.
Further, the factual background in Maxxia differed and the result turned on its own particular
circumstances. Maxxia was not binding on the Deputy President and no appealable error is
disclosed in relation to this ground of appeal.
Ground 1c.
[38] By this ground of appeal, we discern from the Appellant’s submissions that he contends
the effect of the Deputy President’s Order was either directly or indirectly discriminatory (or
[2024] FWCFB 473
13
both) by reference to the objects of the FW Act, s 351 of the FW Act, the Disability
Discrimination Act 1992 (Cth) and equivalent state legislation. The discrimination is said by
the Appellant to arise from the contended failure of the Deputy President to ‘uphold the rights
of a full-time carer’. Putting to one side the clear tension that arises between the Appellant’s
contractual obligations to his employer and his claimed full-time caring responsibilities, we do
not accept that the Deputy President has fallen into legal error as claimed by the Appellant for
the reasons that follow.
[39] In arguing that the Deputy President’s Order is inconsistent with the objects of the FW
Act, the Appellant appears to rely on s 3(e) of the FW Act which states that the object of the
FW Act is to be achieved in part by:
“enabling fairness and representation at work and the prevention of discrimination by
recognising the right to freedom of association and the right to be represented, protecting
against unfair treatment and discrimination, providing accessible and effective
procedures to resolve grievances and disputes and providing effective compliance
mechanisms”
(emphasis added)
[40] The Appellant’s reliance on s 3(d) of the FW Act appears however to ignore the
introductory paragraph of s 3 as well as ss 3(a) and (d) which state as follows;
“The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for
all Australians by:
(a) providing workplace relations laws that are fair to working Australians, promote
job security and gender equality, are flexible for businesses, promote
productivity and economic growth for Australia’s future economic prosperity
and take into account Australia’s international labour obligations; and
…
(d) assisting employees to balance their work and family responsibilities by providing
for flexible working arrangements; and
…”
(emphasis added)
[41] As will be obvious, the FW Act has as its primary object that of providing a ‘balanced
framework for cooperative and productive workplace relations’. Implicit in that language of
achieving a balanced framework is the need to reconcile the at times competing interests of
employers and employees. Whilst observing that the FW Act is, in many respects, remedial
legislation, the objects of the FW Act do not in our view establish a framework that prioritises
the interests of employees over those of employers. The promotion of productivity and
flexibility for businesses and the balancing of the interests of employers and employees is
reinforced through the language in ss 3(a) & (d) of the FW Act. Relevantly, s 3(d) does not
mandate that an employee’s caring responsibilities entirely displace the needs of his or her
[2024] FWCFB 473
14
employer. Rather it states that an object of the FW Act includes assisting employees to balance
their work and family responsibilities by providing for flexible working arrangements.
[42] As to the term ‘discrimination’ where it appears in s 3(d) of the objects of the FW Act,
it may be accepted for the purpose of this ground of appeal that the Commission is required to
have regard to the object of preventing discrimination along with a range of other objects when
discharging its functions. The term ‘discrimination’ is not defined within the FW Act but
guidance on the meaning to be given to the term may be found in the Disability Discrimination
Act 1992 (Cth) where both direct and indirect discrimination are defined in ss 5 & 6 of that act.
Relevantly, the Disability Discrimination Act 1992 (Cth) extends the protections against
discrimination afforded to persons with a disability (as defined in s 4 of that Act) to ‘associates’,
which is defined to include spouses and carers. It is clear enough that the Appellant’s status as
a spouse/carer for his wife and children affords the Appellant protections against direct and
indirect discrimination under the Disability Discrimination Act 1992.
[43] Direct disability discrimination is defined in s 5 of the Disability Discrimination Act
1992 as follows;
(1) For the purposes of this Act, a person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of a disability of the aggrieved
person if, because of the disability, the discriminator treats, or proposes to treat, the
aggrieved person less favourably than the discriminator would treat a person
without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against
another person (the aggrieved person) on the ground of a disability of the aggrieved
person if:
(a) the discriminator does not make, or proposes not to make, reasonable
adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect
that the aggrieved person is, because of the disability, treated less favourably
than a person without the disability would be treated in circumstances that are
not materially different.
…
[44] For the Deputy President’s Order to be directly discriminatory within the meaning of s
5(1) of the Disability Discrimination Act 1992, the Appellant would need to show that being
required to attend and work in the office one day per week had the effect of treating the
Appellant (in his capacity as a carer) less favourably than other persons without a disability
would be treated in circumstances that are not materially different. There was no evidence
before the Deputy President that the Appellant would be treated less favourably than a person
without a disability because of the requirement that he attend the office one day per week. In
fact, the evidence is to the contrary. In our view the effect of the Deputy President’s Order is
that the Appellant was treated more favourably than persons without a disability in the
Respondent’s workforce by being allowed to work from home three days per week. That
[2024] FWCFB 473
15
flexibility is to be contrasted with the Respondent’s normal requirement that its employees
attend the office a minimum of three days per week.
[45] Under the second limb of s 5, the Appellant would need to show in the alternative that
there was a failure to make reasonable adjustments to the requirement to attend the office one
day per week and that failure had the effect of treating the Appellant less favourably than a
person without a disability in similar circumstances. We were not taken to any evidence that
was before the Deputy President that would support a finding that a failure to make or propose
reasonable adjustments to the requirement to attend the office one day per week had the effect
of treating the Appellant less favourably than other person without a disability (as defined) in
similar circumstances. As stated, we are satisfied that the effect of the Deputy President’s Order
was to treat the Appellant more, not less, favourably than other persons in the Respondent’s
workforce without a disability who were required to attend the office a minimum of three days
per week. It follows from the foregoing that the contention that the effect of the Order was
directly discriminatory must be rejected.
[46] Turning to whether the Order requiring the Appellant to attend the office one day per
week was indirectly discriminatory, it is useful to set out the definition of ‘indirect disability
discrimination’ which is found at s 6 of the Disability Discrimination Act 1992 (Cth) and states
as follows:
“(1) For the purposes of this Act, a person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of a disability of the aggrieved
person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to
comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not
comply, or is not able or would not be able to comply, with the requirement
or condition; and
(c) the requirement or condition has, or is likely to have, the effect of
disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against
another person (the aggrieved person) on the ground of a disability of the aggrieved
person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to
comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be
able to comply, with the requirement or condition only if the discriminator
made reasonable adjustments for the person, but the discriminator does not
do so or proposes not to do so; and
[2024] FWCFB 473
16
(c) the failure to make reasonable adjustments has, or is likely to have, the
effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable,
having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or
condition is reasonable, having regard to the circumstances of the case, lies on the
person who requires, or proposes to require, the person with the disability to comply
with the requirement or condition.”
[47] Dealing with what we understand to be the Appellant’s contention that the Order was
indirectly discriminatory, we accept that the requirement to attend the office one day per week
required the Appellant to comply with a condition or requirement (s 6(1)(a)). We are not
however persuaded that the evidence before the Deputy President rose to the level of
establishing that the Appellant in his capacity as a carer would not or could not comply with
the condition or requirement (s 6(1)(b)). The purpose of the three-month trial of the one day per
week arrangement was in fact to allow an assessment of the practicality of that working
arrangement. Absent the assessment enabled by the three-month trial period required by the
Deputy President’s Order and having regard to the Appellant’s long period of absence from the
workplace, we do not accept that the requirements of s 6(1)(b)), a necessary element of
establishing indirect discrimination under the first limb of the definition, are met.
[48] Turning to the second limb of the definition of indirect disability discrimination, we
again accept that the Order would impose a condition on the Appellant in his capacity of a carer
(s 6(2)(a)). As to whether the Appellant could comply with the requirement subject to a
reasonable adjustment being made, we are unable to identify any reasonable adjustment that
could have been made to the requirement to attend the office short of the Appellant being
relieved of the requirement entirely. Removal of the requirement does not in our view constitute
a reasonable adjustment, rather it constitutes the complete withdrawal of the requirement. In
these circumstances we do not regard the second limb of the definition of indirect discrimination
as having been met.
[49] Even if we were to accept that the Appellant had, as a consequence of the Deputy
President’s Order, been subject to indirect discrimination within the meaning of either the first
or second limb of s 6 of the Disability Discrimination Act 1992 (Cth), such discriminatory
conduct found under either ss 6(1) or (2) would not apply if the requirement or condition was
reasonable (s 6(3)) and which had been proven having regard to the circumstances of the case.
It is clear that the Deputy President found based on the material before him that the requirement
to attend the workplace one day per week for the three-month period of the trial was reasonable
in the circumstances. We agree. As such, the requirement imposed on the Appellant by the
Deputy President’s Order to attend the workplace one day per week was not indirectly
discriminatory.
[50] Turning briefly to the Appellant’s submission that the Deputy President’s Order offends
s 351 of the FW Act. The submission is misconceived. Section 351 is directed to prohibiting
unlawful conduct of an employer. It proscribes adverse action being taken by an employer
against an employee or prospective employee because of a particular attribute including ‘family
[2024] FWCFB 473
17
or carer’s responsibilities.’ Section 351 has nothing to say about the contended effects of an
order of the Commission and is only relevant to Part 3-1 general protections applications, which
was not the application dealt with by the Deputy President.
[51] It follows from the foregoing that we are not persuaded that the Deputy President has
fallen into error.
Factual Errors
[52] The Appellant appears to contend that various factual errors made by the Deputy
President led him into error in determining that the Appellant should attend the office one day
per week on a trial basis, despite finding that the Respondent’s rejection of his Fourth Request
was not supported by reasonable business grounds. Much of the Appellant’s submission appears
to be an attempt to reargue his case on appeal because of dissatisfaction with the Decision. Such
an approach is not permissible.
Ground 2a.
[53] The Appellant contends that the Deputy President erred in finding at [10] of the Decision
that the Appellant took days off on leave between September 2022 and July 2023 “during the
days when he was required to attend the office”. The Appellant argues that the days taken off
on leave in that period were not taken off because he was required to attend the office, disclosing
that the days were taken off because they happened to be adjacent to either the weekend or his
RDO on Tuesday, in which circumstances it made sense for him to take leave to create a ‘long
weekend’. The reason advanced by the Appellant for taking particular days off and where those
days fell relative to weekends or RDOs is irrelevant to the unchallenged factual finding made
by the Deputy President. No error in the Deputy President’s finding is disclosed.
Ground 2b.
[54] The Appellant also contends that the Deputy President was in error when he found at
[81] of the Decision that the Appellant had the assistance of support workers through the NDIS
in circumstances where the NDIS plan for his wife contains no funding for support workers.
The Deputy President did not particularise the various funding arrangements provided for in
the NDIS plans of either the Appellant’s wife or his children. In particular, the Deputy President
made no finding that the plan of the Appellant’s wife provided for support workers. The Deputy
President simply noted that Mr Ridings had assistance of support workers through NDIS
funding, an observation that is not challenged by the Appellant in respect of his children. No
error is disclosed.
Ground 2c.
[55] Further error on the part of the Deputy President is contended in that he erred in finding
at [84] of the Decision that the Appellant did not agree to and had not attended the office since
18 September 2023. No error is disclosed in respect of that finding. It simply recorded that the
Appellant had not attended the office since 18 September 2023 and had not agreed to the
Respondent’s proposal that he work in the office one day per week.
[2024] FWCFB 473
18
Ground 2d.
[56] The Appellant also contends that the Deputy President erred at [85] of the Decision by
wrongly assuming that the WH&S issue that existed between 22 December 2023 and 24 April
2024 was that of a disputed Workcover (Comcare) accident claim when it was in fact an
outstanding WH&S issue. We are unable to identify in that paragraph or elsewhere in the
decision where such an assumption was made by the Deputy President. No error is disclosed.
Ground 2e.
[57] The Appellant also contends that the Deputy President erred by finding at [86] of the
Decision that the Appellant was not interested in trying to return to the office and then imposing
condition (C) in the Order. That condition means that if the Appellant was absent from the
workplace for two consecutive weeks or if there were performance concerns or there were
genuine operational requirements requiring his attendance, the Respondent could lawfully
request the Appellant to work in the office on days that he was otherwise permitted to work
from home. While not entirely clear, we understand the complaint of the Appellant to be about
the adverse impact that compliance with that condition of the Order would have. That is in
circumstances where he argued before the Deputy President and again before us that
compliance with such an attendance requirement was not possible in light of his caring
responsibilities. That the Appellant is aggrieved at this element of the Order does not disclose
error on the part of the Deputy President.
Ground 2f.
[58] The Appellant further contends that the Deputy President erred in finding at [86] of the
Decision that the Appellant had failed to demonstrate that the arrangement of working one day
per week in the office could work and in doing so, ignored the Appellant’s full-time carer
responsibilities and the Appellant’s struggles to attend the office. Contrary to the Appellant’s
assertion, the Deputy President did not ignore the Appellant’s caring responsibilities. He
referred to the Appellants circumstances as “challenging and difficult”,31 identified the need to
account for the “gravity” of the Appellant’s circumstances32 and found that the Appellant did
not live far from the office, such that it “would not be unfair for him to travel to and from work
one day per week.”33 It is clear the Deputy President had regard to the Appellant’s caring
responsibilities when according fairness to both the Appellant and Respondent in his
determination, as he was required to do. We discern no error.
Grounds 2g. & h.
[59] The Appellant also argues that the Deputy President erred by finding at [87] that the
Appellant had expressed on 9 February 2024 that he did not wish to “befriend his work
colleagues” which is said to have ignored the Appellant’s evidence that he maintains regular
contact with his work colleagues by email and MS Teams. He further contends that the Deputy
President’s finding was then contradicted at [88] of the Decision where the Deputy President
stated that the Appellant was not expected to befriend his work colleagues. We see no
contradiction in these two statements of the Deputy President. The fact that the Appellant may
not have wished to ‘befriend’ his colleagues was a sentiment the Deputy President readily
[2024] FWCFB 473
19
accepted. In any case, it is unclear to us how the contended error is said by the Appellant to
have infected the Deputy President’s reasoning, conclusions and Order. No error is disclosed.
Ground 2i.
[60] Further error is pointed to by the Appellant in that the Deputy President took into
account at [88] of the Decision evidence that the Appellant was less efficient and productive
than his colleagues in circumstances where the Appellant was not aware of any outstanding
productivity or performance issues. This was a matter raised in the evidence of Jovan Bilac in
the first instance proceedings. During cross-examination before the Deputy President, Mr Bilac
confirmed that the Applicant was one of the least productive members of the team although his
productivity had not varied much between office and home-based work.34 Apparently accepting
Mr Bilac’s evidence, the Deputy President noted that the Appellant was one of the less efficient
and productive classifiers. The Deputy President’s noting of the productivity issue in [88] was
clearly not determinative of the outcome but rather one factor that supported a conclusion that
requiring the Appellant to attend the office one day per week would allow for coaching and
support. No error is disclosed in the Deputy President’s observation.
Ground 2j.
[61] The Appellant also submits that the Deputy President erred by finding at [39] of the
Decision that there was no substantive change in the circumstances of the Appellant in terms
of his carer responsibilities between the Third Request and Fourth Request. We discern the
apparent significance of this finding to be that there were no significant changes in the
Appellant’s circumstances from the Third Request that would justify the Appellant working
from home on a full-time basis as sought by him in the Fourth Request when considered in the
context of his Third Request which, had it been agreed to by the Respondent, would have
required the Appellant to work in the office one day per week.
[62] The Appellant contends that the above-referred finding fails to take into account the
degenerative condition of his wife which he says was the subject of discussion with Mr Bilac
on 31 January 2024. The Deputy President relevantly records in the Decision at [24]-[26] the
medical evidence relied on by the Appellant in making the Fourth Request, the efforts of the
Respondent to obtain further information from the Appellant and the Appellant’s response to
those requests for additional information. Significantly, the Appellant did not provide any
additional medical information in support of the Fourth Request when requested by the
Respondent. That left the supporting medical information before the Respondent as essentially
the same as that provided by the Appellant in support of the Third Request. In these
circumstances, the Deputy President’s finding at [39] of the Decision was open to him and no
error is disclosed.
Ground 2k.
[63] Finally, the Appellant argues that the Deputy President erred at [41] of the Decision by
finding that the Appellant had assumed he was entitled to a flexible working arrangement
without an approved request. The Appellant submits that no such assumption was made by him
[2024] FWCFB 473
20
and that the barrier to his return to work in 2024 was the outstanding WH&S issue. The
Appellants’ reliance in these proceedings on the outstanding WH&S as having prevented him
from returning to the workplace may be contrasted with the position he communicated to Mr
Bilac. In an email exchange that took place between 27 March and 29 April 2024,35 following
a direction from Mr Bilac that the Appellant attend the office one day per week, the Appellant
relied on his belief that the direction was neither reasonable nor lawful in circumstances where
he had provided a medical certificate to the Respondent dealing with his caring responsibilities.
Relevantly, he stated to Mr Bilac that he would not be returning to the office until ‘Fair Work
has made their decision’.
[64] It appears to us that the Appellant is now arguing that he was prevented from returning
to the office in early 2024 because of the outstanding WH&S issue when the reason he advanced
at the time of his absence was his belief that the direction to attend the office was not lawful
and reasonable. We hold some doubts about the submission when the reason now advanced for
the prolonged absence in early 2024 differs from the reasons put to the Respondent at the time
of the absence from the workplace in March and April 2024. In any case, the finding made by
the Deputy President was reasonably open to him in our view based on the Appellant’s conduct
of refusing to return to the office pending a decision of the Commission despite a direction from
Mr Bilac to attend the office. No error is disclosed.
Conclusion
[65] An appeal exists for the correction of error. While the Appellant is aggrieved by the
Decision, he seeks to re-argue, through this appeal, matters which the Deputy President
appropriately considered and weighed, in search of a different result. The Appellant has failed
to advance any matter disclosing appealable error in the Decision. Absent any identified
appealable error, the Appellant’s public interest arguments do not persuade us that it is in the
public interest for permission to appeal to be granted. The Decision is one confined to its
particular facts and we do not consider that the appeal raises any issue of potentially wider
application.
[66] One final point to be made is that there would be no useful purpose to granting
permission to appeal in this matter because the appeal, even if successful, would have no
practical consequences for the parties. The flexible working arrangement that was the subject
of the Order of the Deputy President expired on 12 October 2024. Regardless, for the reasons
set out above, the Full Bench is not satisfied that the Appellant has demonstrated an arguable
case of appealable error or that it would be in the public interest to grant permission to appeal
pursuant to s.604(2) of the FW Act.
[67] Permission to appeal is refused.
ME FA ORK COMMISSION THE SEA
[2024] FWCFB 473
21
DEPUTY PRESIDENT
Appearances:
P Ridings on his own behalf
C Tirado for the Respondent
Hearing details:
Melbourne via Microsoft Teams.
2024.
17 September.
Printed by authority of the Commonwealth Government Printer
PR782803
1 [2024] FWC 1845.
2 Ibid at [4]–[6].
3 Ibid at [7].
4 Ibid at [8]–[10].
5 Ibid at [14].
6 Ibid at [16]–[21].
7 Ibid at [24]–[31].
8 2023 FWCFB 6191.
9 [2024] FWC 1845 at [36]
10 Ibid at [37]-[38]
11 Ibid at [45].
12 Ibid at [53].
13 Ibid at [54]–[57].
14 Ibid at [66]–[67].
15 Ibid at [68]–[69].
16 Ibid at [71].
17 Ibid at [73].
18 Ibid at [72]–[74].
19 Ibid at [76].
20 Ibid at [77].
21 Ibid at [78]–[83].
22 Ibid at [92].
23 [2023] FWC 2768.
24 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
25 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 85 ALJR 398, [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services
Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]–[46].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1845.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1845.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2768.pdf
[2024] FWCFB 473
22
26 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, [26]-[27], 197 IR 266; Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 [28], 202 IR 388, affirmed on
judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett
McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, [28].
27 [2010] FWAFB 5343, 197 IR 266, [24]–[27].
28 See also CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.
29 Wan v AIRC (2001) 116 FCR 481, [30].
30 The most recent approved flexible working arrangement was in respect of the Second Request, which allowed the
Appellant to work his 30.4 hours per week over four days.
31 [2024] FWC 1845 at [81].
32 Ibid at [75].
33 Ibid at [83].
34 Transcript of hearing on 19 June 2024 at PN577–PN583.
35 Statement of Peter Ridings, Annexure PR-22 in proceedings before DP Lake
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb10089.htm
http://www.fwc.gov.au/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1845.pdf
