1
Fair Work Act 2009
s.65B - Application to deal with a dispute about requests for flexible work arrangements
Kent Aoyama
v
FLSA Holdings Pty Ltd
(C2024/8591)
COMMISSIONER SLOAN SYDNEY, 24 FEBRUARY 2025
Application to deal with a dispute about the right to request for flexible working
arrangements
[1] Kent Aoyama commenced employment with Frontier Logistics Pty Limited on 3 May
2021. He was employed on a full-time basis. Since at least July 2023, Mr Aoyama had
permission from Frontier Logistics to work from home on Tuesday and Thursday each week.
[2] In July 2023 Mr Aoyama and his wife welcomed a child. Mr Aoyama did not change
his working arrangements. At the time, his wife’s job allowed flexibility in her hours of work.
This, coupled with the assistance of a nanny, meant that Mr Aoyama could continue to attend
the office as required.
[3] In mid-2024 there was a transfer of business from Frontier Logistics to FLSA Holdings
Pty Ltd. As a result, Mr Aoyama was offered and accepted employment as an Account Manager
with FLSA. His employment with FLSA commenced on 1 July 2024. However, under the terms
of his employment contract FLSA agreed to “recognise [his] employment commencement date
with Frontier Logistics Pty Ltd of 3rd May 2021 for the purpose of all service-based
entitlements”.1
[4] After he commenced with FLSA, Mr Aoyama continued to work from home two days
a week.
[5] In about August 2024, Mr Aoyama’s wife changed jobs. She no longer had the same
flexibility in her hours of work. This caused Mr Aoyama to explore how he might work more
from home to assist in the care of their child.
[6] At about that time, Mr Aoyama had a conversation with his manager, Heidi Lettey,
FLSA’s Regional Manager. Mr Aoyama asked whether Ms Lettey “minded” how often he
worked from home. Ms Lettey told him that she did not.
[7] However, about three weeks later, Mr Aoyama was called into a Teams meeting with
Ms Lettey and Rahul Knight, Ms Lettey’s manager. Mr Aoyama was told that he needed to
[2025] FWC 524
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 524
2
spend more time in the office and, if he wished to make a change to the current arrangements,
he would need to make a “formal application”.
[8] Mr Aoyama acted on that suggestion. On 28 October 2024 he sent an email to David
Parker, FLSA’s Chief Financial Officer, in these terms:
“Hi David,
Current situation
My wife & I have decided we don’t want to put our daughter into childcare until she’s
at least 2 years old.
We have a combination of a Nanny 3 days a week & 2 days at a hotdesk/childcare set-
up, however we need one of us to be with her at all times.
With my wife working 5 days office, 5 days at home I’m requesting the same so we can
always have 1 parent with our daughter.
Monday – Alternating day, office/WFH
Tuesday – WFH (Bubbadesk) 8:30AM-4:30PM due to operating hours
Wednesday – Onsite for Monthly catch-ups with customers
Thursday – WFH (Bubbadesk) 8:30AM-4:30PM due to operating hours
Friday – Office
All other days will be 9AM-5PM as the default.
Amount of hours worked will be the same, days with the child I may need to attend to
change nappies, naps etc.
This will be for the next 9 months or so until we move her to childcare where our
situation will change again.”
[9] For context, Mr Aoyama described “Bubbadesk” as “a childcare alternative where the
parents have a shared work space in the same building while the children are looked after in a
separate area by Nannys [sic]. As they are not licensed childcare, parents are not allowed to
leave the building without their child.”2
[10] On 8 November 2024, Mr Aoyama met with Mr Parker and Mr Knight to discuss his
request. Mr Aoyama was told that FLSA had received two complaints. One was said to have
come from “Australian Agribusiness” (referred to internally at FLSA as “Aus Ag”), a customer
of the company. The other was said to have been made by Direct Couriers, a supplier to the
company. It is unclear what detail Mr Aoyama was provided regarding the supposed
complaints.
[11] Mr Aoyama’s recollection of what was said in the meeting is poor. He claimed during
the hearing that the words “babies in the background” were used. He said he was also told that
[2025] FWC 524
3
Aaron Dunton at Australian Agribusiness had commented that Mr Aoyama’s performance had
declined.
[12] FLSA led no evidence about the meeting on 8 November 2024. It stated that comments
had been made to FLSA’s Head of Customer Experience, presumably Mr Knight, “by both a
customer and a supplier of FLSA”.3 The company did not dispute that the customer was
Australian Agribusiness and that the supplier was Direct Couriers. In its written material, FLSA
stated: “The comments have been in respect of a young child and the distraction.”4 On the
evidence, the level of detail that Mr Parker and Mr Knight provided to Mr Aoyama on
8 November 2024 did not rise much higher than that statement.
[13] On 11 November 2024, Mr Parker sent an email to Mr Aoyama in these terms
“Hi Kent,
Thank you for your time to meet with Rahul and I on the 8th November.
We’ve considered your request for a flexible working arrangement.
Due to the nature of your Account Management role and the responsibilities that come
with that role (to your accounts under management and to the CX team), we have some
concerns, which you acknowledged and understood:
• Customer responsiveness during business hours.
• Customer perception – example Aus Ag as discussed.
• Bubbadesk – if you had to leave for a customer you would have to take your
daughter with you.
On this basis, we were unable to approve your flexible working request in its current
form. However, we are empathetic to your family situation and carefully considered
whether any alternative arrangements could balance the needs of the
business/requirements of your role, and your ability to provide further support to your
family.
We are prepared to trial this for 2 days per week for 6 months, whether you utilize
Bubbadesk or a Nanny at home. We consider the below proposed schedule to be fair
and reasonable for both parties:
Monday – Office
Tuesday – Bubbadesk/Nanny
Wednesday – Client visits
Thursday – Bubbadesk/Nanny
Friday – Office
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4
Let me know if you wish to discuss this further.”
[14] Mr Aoyama responded to Mr Parker’s email on 12 November 2024, in these terms
(I have replaced the red text in the original with italics):
“Thanks David.
Just want to be clear on this, please confirm that the only change to my original request
is instead of alternating Mondays to be WFH/Office, this day will be office full time.
I’d like to break down a couple of things below, my queries in red:
• Customer responsiveness during business hours.
Can you please be specific on what the expectation is regarding responsiveness.
I can’t recall this being a major issue in our meeting.
My perspective is that while I may not be 100% available to answer my phone,
I will return any missed calls ASAP. This is the same as office days and as far
as I’m concerned, WFH days should not affect this
• Customer perception – example Aus Ag as discussed.
Requesting any customer complaints that have been made to please be sent in
writing.
I also don’t believe the 1 day per fortnight will affect this. I would prefer to
discuss expectations when communicating with customers in a WFH setting and
setting standard requirements. If these are not met and we are receiving an
agreed amount of customer complaints then we can review the WFH set-up
• Bubbadesk – if you had to leave for a customer you would have to take your
daughter with you.
The particular day you have rejected in your proposed alternative is unaffected
by this. The Monday I’ve requested to be alternated is a Nanny day.
On this day I have no issues leaving the baby with the Nanny as long as it’s
within reasonable business hours.
Based on the points above I would still request the arrangement originally suggested, let
me know your thoughts.”
[15] Mr Parker responded to Mr Aoyama on 13 November 2024, in these terms:
“Hi Kent,
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5
As previously discussed, the customer (Aus Ag) made a comment to Rahul, as did a key
supplier, Direct Couriers. The feedback from these individuals was not provided in
writing otherwise I would be happy to share it with you.
The arrangement that we have put forward is on a 6-month trial basis (noting that you
indicated that you would only require additional flexible work accommodations for the
next 9 months in any event). If any customer complaints are made during this trial
period, they will of course be assessed by us, as is the case for all complaints we receive.
We appreciate and have taken note of your comments, however we do need to be clear
that your primary responsibility during paid work hours is to undertake the requirements
of your role, which includes attending to and being responsive to customers without
distraction (which includes providing care for a young child).
The business is unable to support your original proposal, and we have explained to you
the reasons for this. We consider the alternative that we have put forward to be generous
taking into account the obligations of your role and broader business requirements.
If you would like to take us up on implementing our proposal, please let us know before
the end of the week, so that arrangements can be confirmed with the team.”
[16] Mr Aoyama and Mr Parker exchanged several emails on 15 November 2024. It is not
necessary to reproduce them. Both men maintained their respective positions. Mr Aoyama
informed Mr Parker of his intention to commence these proceedings.
[17] Mr Aoyama did so on 1 December 2024. The application was brought under s 65B of
the Fair Work Act 2009.
What is Aoyama seeking?
[18] In short, Mr Aoyama seeks an order from the Commission that FLSA grant the request
set out in his email to Mr Parker of 28 October 2024.
[19] That has to be seen in the context of his current arrangements, where he currently works
remotely two days a week. Having regard also to the terms of Mr Parker’s emails to Mr Aoyama
referred to above, the difference between the parties is whether Mr Aoyama should be permitted
to work from home every second Monday.
Does the Commission have the jurisdiction to make the order sought?
[20] There are two broad prerequisites to the Commission being able to deal with this matter.
As FLSA did not challenge the Commission’s jurisdiction, I will deal with them relatively
briefly.
There must be a relevant dispute
[21] The first prerequisite is that the matter must amount to a dispute within the meaning of
s 65B(1). Relevantly for present purposes, such a dispute will arise where an employee makes
a request to their employer under s 65(1) for a change in working arrangements and
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6
the employer has refused the request. This in turn imports a requirement that the employee’s
request must have been validly made under s 65(1).5
[22] There are five preconditions to a request under s 65(1) being validly made.6 I will deal
with them in turn.
[23] First, at least one of the circumstances in s 65(1A) must apply to the employee.
The relevant circumstances must, as a matter of fact, exist (rather than be anticipated or the
subject of anticipatory discussion) in respect of the employee at the time the request is made.
In the present case, there is no dispute that Mr Aoyama is the parent of a child who is of school
age or younger: s 65(1A)(a).
[24] Second, the employee’s desire for changed working arrangements must be “because of”
the relevant circumstances (s 65(1)(b)) and relate to them. That is, there must be a nexus
between the request and the relevant circumstances. Again, there is no dispute that such a nexus
exists in this case. The changes in working arrangements that Mr Aoyama requested arose from
his desire to assist in the care of his child following a change in his wife’s employment situation.
[25] Third, the employee must have completed a minimum period of service immediately
before making the request: s 65(2). In this case, that period is 12 months of continuous service.
[26] At the hearing, Mr Parker gave evidence that he was hired to perform an income tax
consolidation in respect of four small businesses (one of which was Frontier Logistics) which
had a common majority shareholder. FLSA was created to, and did, acquire the assets and
liabilities of those businesses. All employees in those businesses were “brought over” to FLSA.
[27] On the evidence, I am satisfied that that there was a transfer of employment7 when
Mr Aoyama became employed by FLSA. It follows that his period of employment with Frontier
Logistics counts as service with FLSA.8 This is consistent with his employment contract. It
follows that Mr Aoyama had completed the minimum period of service before making the
request.
[28] Fourth, the request must have been made in writing: s 65(3)(a). Mr Aoyama’s email to
Mr Parker of 28 October 2024 meets that requirement.
[29] Fifth, the request must set out the details of the change sought and the reasons for the
change: s 65(3)(b). The requirement to set out the “reasons for the change” is to be understood
as connected with the requirements for a valid request in s 65(1). That is, the required reasons
would need to identify the relevant circumstance in s 65(1A) and explain how the proposed
changed working arrangements relates to that circumstance. Once again, I am satisfied that Mr
Aoyama’s email to Mr Parker of 28 October 2024 meets that requirement.
Attempts to resolve the dispute at the workplace level
[30] The second prerequisite is that the parties to the dispute must first attempt to resolve it
at the workplace level, by discussions between them: s 65B(2). A party may only refer the
dispute to the Commission “if discussions at the workplace level do not resolve the dispute”:
s 65B(3).
[2025] FWC 524
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[31] The correspondence between the parties between 28 October 2024 and 15 November
2024, and the meeting between Mr Aoyama, Mr Parker and Mr Knight on 8 November 2024,
demonstrate that this requirement is met.
Conclusions
[32] For the reasons set out above, I am satisfied that:
a. Mr Aoyama validly made a request for a change in his working arrangements
relating to his parental responsibilities of a child younger than school age;
b. FLSA refused that request; and
c. the parties unsuccessfully attempted to resolve the dispute at the workplace
level.
[33] It follows that Mr Aoyama was entitled to refer the dispute to the Commission and the
Commission may deal with it.
Attempt to deal with the matter other than by arbitration
[34] When a dispute is referred to the Commission, it must first deal with the dispute by
means other than arbitration, unless there are exceptional circumstances: s 65B(4)(a).
[35] I convened a conference with the parties on 15 January 2025 during which I attempted
to resolve the dispute by conciliation. To perhaps state the obvious, the parties were unable to
reach a resolution.
Exercise of the Commission’s arbitration powers
[36] It remains for me to determine whether I should exercise my discretion to make an order
under s 65C(1) of the kind Mr Aoyama seeks.
The cases advanced by the parties
[37] The cases which the parties advanced at arbitration distilled to the question of whether
FLSA had reasonable business grounds to refuse Mr Aoyama’s request.
[38] FLSA’s case can be summarised as follows:
a. Mr Aoyama’s employment agreement does not allow for him to work from
home. Rather, it states that his “usual place of employment” will be FLSA’s
premises in North Sydney.9
b. Mr Aoyama has stated that supervision of his daughter would include changing
her nappies, helping her get to sleep, and tending to her if she is upset. These are
“significant supervisory responsibilities” that “would represent a significant
distraction”, and conflict with his obligation under clause 12.1 of his
employment agreement to devote his whole time and attention to the business
during work.10
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c. The requested work arrangements would have a significant negative impact on
customer service within the meaning of s 65A(5)(e). Even under the current
arrangements (in which Mr Aoyama works remotely two days a week) “he is
often less responsive to clients (sending responses to clients late in the evening
or otherwise delayed in his response time)”.11 This is further evidenced by the
“comments” from Australian Agribusiness and Direct Couriers referred to
above.12
d. Mr Aoyama will be “distracted and interrupted during work hours whilst
supervising his daughter”.13 He works in a customer-facing role that requires
customer interaction and dealing with urgent customer concerns and queries.
Mr Aoyama’s “proposed supervisory responsibilities [over his child] would
further impinge his capacity to provide efficient and productive work for his
portfolio of FLSA clients”.14
e. Granting Mr Aoyama’s request could set a concerning precedent across the
broader business. FLSA spends a lot of money on real estate, and it would prefer
for its employees to be in the office.
[39] Mr Aoyama disputes that FLSA had reasonable business grounds for refusing his
request. His case comes down to the following propositions:
a. The terms of his employment agreement on which FLSA relies have been taken
out of context. It does not have the effect for which the company contends.
His request would not be in contravention of the agreement.
b. His key performance indicators as an account manager require him to respond
to emails and telephone calls (if missed) from clients within four hours.
Such responsibilities as he has for his child during business hours have not
prevented him from meeting those KPIs, and will not do so in the future.
c. In all his time in the business, he has not been required to urgently attend a
customer’s site, without notice. He is not aware of it having occurred to others.
Therefore, there is no basis for FLSA to put forward such an unlikely scenario
to refuse his request (see Mr Parker’s email to Mr Aoyama of 11 November
2024). But even in the event that such a situation occurred, he and his wife could
manage their affairs to ensure that he was able to attend on the customer.
d. Until he made the request which gave rise to this dispute, FLSA had not raised
with him any concerns regarding his working from home arrangements.
No issues or complaints from customers or suppliers had been brought to his
attention. To the extent that FLSA now relies on such matters, he has been
provided with insufficient detail to understand or address the alleged concerns.
e. He does not expect the new working arrangements to be inflexible or set in stone.
When business needs require it – such as to attend client meetings or travel
interstate – he can make different domestic arrangements provided that he has
adequate notice.
[2025] FWC 524
9
f. An additional day of working from home every fortnight would be a minor
adjustment for FLSA. However, for him and his wife would make a significant
difference to their finances and avoid the additional planning and logistics of
organising the appropriate care of their child.
Consideration
[40] Mr Aoyama has not sought an order that “it would be appropriate for the grounds on
which the employer refused the request to be taken not to have been reasonable business
grounds”, as provided for under s 65C(1)(b)(ii). Rather, he seeks an order that FLSA grant the
request in his email to Mr Parker of 28 August 2024, under s 65C(1)(f)(ii).
[41] To grant Mr Aoyama that order, I do not need to make a positive finding as to whether
or not FLSA had reasonable business grounds to refuse his request. I am arbitrating the dispute,
not simply reviewing whether FLSA had refused the request on reasonable business grounds.15
However, it is appropriate that I consider the arguments advanced by FLSA in this regard in
order to determine whether or not to exercise my discretion to make any order.
[42] It is not the role of the Commission to stand in the shoes of the employer and consider
whether it would have refused the request, substituting its own reasons. Rather, the
Commission’s task is to make an assessment as to whether FLSA’s grounds are reasonable
business grounds in the circumstances. That requires an objective assessment of those reasons.16
[43] I do not find FLSA’s arguments that it had reasonable business grounds to refuse
Mr Aoyama’s request to be persuasive. As a general observation, they fail to recognise the
objects of the Act. This is seen in particular in FLSA’s reliance on the terms of Mr Aoyama’s
employment agreement. FLSA’s submissions in this regard ignore the objectives of Part 2-
2 Division 4 of the Act. 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.17 This might require a departure from the written terms of
the employee’s employment.
[44] Further, I agree with Mr Aoyama that the arrangements he has proposed are not
inconsistent with the terms of his employment agreement. It is unremarkable that an
employment contract would specify a person’s “usual” place of work. That is not to say that
that location is the employee’s only place of work. It is significant that FLSA has raised no
objection on that basis to Mr Aoyama working remotely two days a week since at least July
2023.
[45] FLSA’s reliance on Mr Aoyama’s contractual obligation to devote his whole time and
attention to FLSA while working is similarly misguided. In context, as Mr Aoyama submitted,
the clause as a whole is concerned with Mr Aoyama engaging in other business activities during
his employment with FLSA. It is a stretch to suggest that it operates as a bar to Mr Aoyama
changing his child’s nappies or settling her when required during working hours.
[46] Turning to FLSA’s arguments as to the impact that the arrangements proposed by
Mr Aoyama would have on its business, I make several observations. First, FLSA’s evidence
is extremely limited. At its highest, it is confined to the “comments” attributed to employees of
Australia Agribusiness and Direct Couriers. FLSA has not provided me with the substance of
[2025] FWC 524
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those comments. The summary that FLSA provided – that the comments were “in respect of a
young child and the distraction” – is so imprecise as to be completely unhelpful.
[47] In essence, FLSA would have me regard the “comments” as “complaints”. But it has
not provided the basis on which I should do so. Indeed, FLSA’s case places undue emphasis on
the “comments”. It gives them more significance than they can properly bear.
[48] Second, FLSA did not produce any evidence to demonstrate that Mr Aoyama’s current
arrangements have had a negative impact on customer service or business productivity. Its case
in this regard is nothing more than assertion. To the extent that FLSA relies in this regard on
the “comments” referred to above, it has not demonstrated how they reveal actual detrimental
impacts on the business.
[49] On that basis, the premise of FLSA’s submission that to agree to Mr Aoyama’s request
would “further impinge his capacity to provide efficient and productive work” 18 (my emphasis)
is simply not made out.
[50] Third, FLSA does not appear to have tailored its submissions to the nature of the change
sought by Mr Aoyama. In essence, he seeks to work from home one additional day per fortnight.
While his request carries with it the “formalisation” of his current arrangement of working
remotely two days per week, that is not of itself a change. FLSA has not persuaded me that an
extra day per fortnight would have a material, if any, bearing on the efficiency or productivity
of FLSA’s enterprise or a significant, if any, negative impact on customer service.
[51] Finally, I place no weight on FLSA’s submissions as to the possibility of Mr Aoyama’s
case creating a precedent. As I have stated, the purpose of flexible working arrangements is to
accommodate the circumstances of individual employees if the employer is able to do so. I will
not be dissuaded from dealing with the current dispute simply because it may alert other FLSA
employees to rights that they may have under the Act.
[52] In any event, if other FLSA employees are encouraged by this case to make a request
for flexible work arrangements, they would be dealt with by FLSA – and possibly the
Commission – on a case-by-case basis having regard to their particular circumstances.
[53] For these reasons, I do not consider that FLSA had reasonable business grounds to refuse
Mr Aoyama’s request.
Should I make an order?
[54] The question which is next arises is whether I should exercise my discretion to make the
orders sought by Mr Aoyama, or another order.
[55] I can only make an order if I am satisfied that there is no reasonable prospect of this
dispute being resolved without me doing so: s 65C(3). I conducted a conference on 15 January
2025 at which, to state the obvious, the parties were unable to resolve the dispute. That fact,
coupled with my involvement in this dispute since it was referred to the Commission, satisfies
me that this matter will not be resolved without the making of an order.
[56] In making an order, I must take into account fairness between FLSA and Mr Aoyama.
In this regard, the reasons for which I have found that FLSA did not have reasonable business
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grounds to refuse the request support the making of the order. I am also cognisant of the change
in Mr Aoyama’s personal circumstances which gave rise to the request and the impact on
Mr Aoyama and his family if an order is not made.
[57] I also have regard to Mr Aoyama’s written and oral submissions that he does not intend
the arrangements to be inflexible. If he is required to do so, and provided he receives sufficient
notice, he is willing to work from the FLSA office or undertake business trips on additional or
alternative days to meet the needs of the business.
[58] In all the circumstances, I am satisfied that it is appropriate that I make an order that
FLSA grant the request contained in Mr Aoyama’s email to Mr Parker of 28 October 2024.
I have determined that the arrangement should remain in place until Mr Aoyama’s child is two
years old. This is the time at which Mr Aoyama anticipated his child would start attending
childcare. I know only that the child was born in July 2023 and so I will order that the
arrangements remain in place until 31 July 2025.
Order
[59] The order giving effect to this decision is published as PR784680.
COMMISSIONER
Appearances:
Kent Aoyama, the Applicant
David Parker, for the Respondent
Hearing details:
19 February
Sydney (by video)
2025
Printed by authority of the Commonwealth Government Printer
PR784616
1 Exhibit 5, clause 1.2
2 Exhibit 2, p 5
ASSION WORK COMMISSION THE SEAD OF THE
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr784680.pdf
[2025] FWC 524
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3 Exhibit 4 at par 20
4 ibid.
5 Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 at [21]
6 See Jordan Quirke v BSR Australia Ltd [2023] FWCFB 209 at [22]-[25]
7 Within the meaning of s 22(7)(a)
8 Section 22(5)
9 Exhibit 5, clause 2.2
10 Exhibit 4, par 11
11 Exhibit 4, par 18
12 Exhibit 4, par 20
13 Exhibit 4, par 22
14 Exhibit 4, par 23
15 Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWCFB 473 at [34]
16 Elizabeth Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025]
FWC 317 at [127]
17 Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWC 1845, quoted without criticism by the Full Bench
in Peter Ridings v Fedex Express Australia Pty Ltd T/A Fedex [2024] FWCFB 473 at [16]
18 Exhibit 4, par 23
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb209.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb209.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb473.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc317.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc317.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc1845.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb473.pdf
