1 Fair Work Act 2009 s.65B - Application for a dispute about requests for flexible work arrangements Sean Faherty and Stuart Dale v Shell Australia FLNG Pty Ltd (C2025/8359) (C2025/8373) COMMISSIONER HUNT BRISBANE, 1 SEPTEMBER 2026 Applications to deal with a dispute about a request for flexible working arrangements – jurisdiction under s.65B to deal with dispute not enlivened – applications dismissed under s.587(1)(a) [1] On 27 August 2025, Mr Sean Faherty and Mr Stuart Dale (the Applicants) each made an application to the Fair Work Commission (the Commission) under s.65B of the Fair Work Act 2009 (the Act) to deal with a dispute about the Applicants’ requests for flexible working arrangements. The Respondent to the applications is Shell Australia FLNG Pty Ltd (the Respondent). [2] Both matters were allocated to me, and I considered it appropriate to join the matters and deal with them together. I convened a conference with the parties on 10 September 2025. The dispute did not resolve, and the matter was heard by Microsoft Teams on 28 November and 3 December 2025. [3] The Applicants were represented by Ms Jessica Duan, AWU Legal Officer. The Respondent was granted leave pursuant to s.586(2)(a) of the Act to be represented by Ms Rachel Dawson, Partner of HSF. The parties were subsequently provided a further opportunity to file submissions by 5 December 2025. [4] Section 65B(4) of the Act provides that if a dispute is referred to the Commission under s.65B(3), it must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances. The Commission may deal with the dispute by arbitration in accordance with s.65C. [5] The Applicants seek that the Commission make an order under s.65C(1)(f)(i) of the Act that the Respondent grant the Applicants’ requests for flexible working arrangements. Factual Background [6] The Applicants are employed by the Respondent at the Prelude offshore floating liquified natural gas facility (Prelude), which is located 200 kilometres off the coast of Western [2026] FWC 3329 DECISION [2026] FWC 3329 2 Australia near Broome. The Applicants commenced employment with the Respondent in 2014. Mr Faherty is employed as a Panel Technician, while Mr Dale is employed as a Production Technician. Both Applicants are over the age of 55 and made their requests for flexible work arrangements (FWA requests) on this basis. Mr Faherty’s Flexible Work Arrangement Request [7] On 22 July 2025, Mr Faherty emailed a FWA request to Mr Mark Ireland, the Area Team Lead for the Utilities Area on Prelude as follows: “Dear Mark Request for flexible working arrangements I would like to request under section 65 of the Fair Work Act 2009 (the Act) to work a flexible work arrangement that is different to my current working arrangement. I am making this request because I am 55 or older. I can confirm that I have worked continuously as an employee of this business for the last 12 months and am employed on a full time basis on Shell Prelude FLNG. I would like to start working a new proposed roster which would reduce my working hours by 50%. The new roster would involve working 3 weeks offshore instead of the normal 6 weeks within each 15 week cycle. These changes will assist me because I would like to go into semi-retirement and spend more time with Family. I would like this working arrangement to start from January 13, 2026. I believe that the effect on the business and my colleagues can be accommodated by allowing new Operators to train and cover my role where possible by going back to back with other Operators applying for the same flexible working arrangements. When on shift I can continue to pass on my knowledge and experience to new Operators at the organisation. I would appreciate your response to this request, in accordance with the Act, within 21 days of today’s date. I am happy to discuss this matter at a time that is convenient. I am willing to discuss possible alternatives to the arrangements I have outline and I am also willing to work with you to make sure that this arrangement works effectively for both the business and me.” [2026] FWC 3329 3 [8] Under Mr Faherty’s proposed new roster, Mr Faherty would work three weeks out of the 15-week cycle and Mr Dale would work the other three weeks.1 The 15-week cycle is: • three weeks on; • four weeks off; • three weeks on; and • five weeks off. [9] The effect is that each Applicant will attend for a three-week swing on three-to-four occasions per annum. The Applicants currently earn approximately $300,000 per annum. They wish to work 50% of the time and therefore there would be a pro rata adjustment to their annual salary. [10] On 23 July 2025, Mr Ireland replied to Mr Faherty’s email, noting that Mr Faherty’s request was not in the format required by Shell. Mr Ireland advised that Mr Faherty’s request would need to be re-submitted using the Shell ‘Flexible Work Request Form’. Mr Ireland also advised: “….you will need to have a back-to-back that is equivalent skill set to you (i.e. Panel and field competent)”. [11] Mr Faherty and Mr Ireland also had a verbal conversation in which Mr Ireland indicated that Mr Faherty’s request could potentially proceed if a third operator, Mr James Smith was trained on the panel. Mr Ireland proposed Mr Smith could be ready by September or October 2026 (in around 15 months’ time), and that Mr Faherty’s application could be reviewed at that time.2 [12] On 23 July 2025, Mr Faherty submitted another FWA request using Shell’s online Flexible Work Request Form. Mr Faherty’s form requested the same arrangement as in his original request, with it commencing 17 February 2026. [13] On or around 3 August 2025, Mr Faherty had a conversation with Mr Ireland about how he could access a flexible work arrangement. During this conversation, Mr Ireland said words to the effect: “…the only way that it could really work is if we trained up a third person to be competent in the ‘Utilities Panel’ as a ‘Panel Operator’, because Stu [Mr Dale] doesn’t do the panel. Let’s train up James [Mr Smith], so that in the time that you’re not there, there would always be two Panel Technicians available on shift. Once he has been trained on the panel by September or October 2026, you would be able to do the flexi-roster with Stu.” [14] During this conversation, Mr Faherty suggested to Mr Ireland the following alternative proposal: “Mick Kekewick is also a fully trained panel technician on our shift (‘E’ Shift), he could cover the position of Panel operator in the time that I would be on my Flex- roster off. In addition to Mick Kekewick covering the position of Panel operator”. [2026] FWC 3329 4 [15] Mr Faherty also mentioned that the Utilities Lead Technician (David Flood) in his shift is also fully trained on the Utilities Panel and could assist the Panel Operator when needed. [16] On 9 August 2025, Mr Ireland responded to Mr Faherty’s FWA request as follows: “The application you submitted on 23rd July for a Flexible Work Arrangement has been reviewed. The application is not able to be approved at this stage in its current form due to operational factors, specifically, the lack of a competent Panel Technician in the Utilities Area available to cover the gap your flex work roster would leave. We would, however, like to work with you to find a resolution to allow you to transition to retirement when the above factor is resolved. I suggest we connect over the weekend to discuss again the requirements which would need to be met to support a flex work arrangement; the likely timeframe for these to be in place and resubmit the request on this basis.” Mr Dale’s Flexible Work Arrangement Request [17] On 25 May 2023, Mr Dale made a flexible work arrangement request via email to alert the Respondent that he would be seeking to make a FWA request once he turned 55 years old. He was not, at that time, 55 years old. He withdrew his request. He did, however, advise that he would submit a request when he met the eligibility criteria, hoping that with advance notice the Respondent would be able to resolve any potential issues that would prevent him from transitioning to part-time hours. [18] Ahead of turning 55, on or around 10 May 2024, Mr Dale made another flexible work arrangement request via email to Mr Ireland, using the template from the Fair Work Ombudsman website. The email stated: “Dear Mark Ireland Request for flexible working arrangements I would like to request under section 65 of the Fair Work Act 2009 (the Act) to work a flexible work arrangement that is different to my current working arrangement. I am making this request. because I am 55 or older as of July 19th, 2024. I can confirm that I have worked continuously as an employee of this business for the last 12 months and am employed on a full-time basis. I would like to start working reduced hours, 50% of my current roster, working every other swing. These changes will assist me because I would like to use this as a transition to retirement. [2026] FWC 3329 5 I would like this working arrangement to start from 6 August 2024, although I am somewhat flexible with this depending on what would suit the company best regarding days and night shifts. At the present time I have no preference. I believe that the effect on the business would be minimal as I initially made my intentions known over a year ago and we now have enough people on shift with the competencies to cover without issue. I would appreciate your response to this request, in accordance with the Act, within 21 days of today’s date. I am happy to discuss this matter at a time that is convenient. I am willing to discuss possible alternatives to the arrangements I have outlined, and I am also willing to work with you to make sure that this arrangement works effectively for both the business and me. Please contact me on […]” [19] Mr Dale was informed by Mr Ireland that he would need a back-to-back in order for the request to be approved. By that, it is understood that he would need another employee to cover the other 50% of rostered time. [20] On or around 23 March 2025, Mr Dale made a further flexible work arrangement request using the Respondent’s online Flexible work Request Form. In the ‘Additional detail to further explain & support request’ section of the form, Mr Dale stated: “I would like to formally reapply for a transition to retirement with the intention to start on 10th September 2025. I would like this arrangement to apply for a period of two years, during which I do not intend to transition back to full-time work. As you may recall, I initially started this process with my first application on 27th May 2023. Unfortunately, I was not able to proceed at that time due to not meeting the age requirements. I left the process with the understanding that I would pursue it again the following year. On 10th May 2024, I reapplied but was informed that the opportunity was not available due to the company’s commitments to Crux and the 2026 Turnaround. I was encouraged by the feedback that the answer was not a definitive “No” but rather a “Not now,” with the possibility of reconsideration in the first quarter of 2025. I believe that my absence will not have a substantial impact on the current shift. Recently, we managed to cover the absence of two individuals, including a panel operator, without resorting to overtime. We have also done this many times with a single team member absent. This demonstrates our team’s ability to handle such situations effectively. This arrangement would greatly assist me in achieving my goal of retirement by allowing me to gradually adjust to extended periods at home. This gradual transition will enable my family and me to adapt our social lives and finances in a measured and controlled manner. Additionally, after breaking my back last year, I have ongoing health issues that require extended physiotherapy. Being at home more often would provide me with better access to the necessary treatments, potentially leading to a quicker recovery. I am committed to ensuring a smooth transition and will work closely with my team to minimize any disruptions. I am confident that this arrangement will be beneficial for both the company and myself.” [2026] FWC 3329 6 [21] On or around 13 April 2025, Mr Dale received an email from Mr Ireland refusing his flexible work arrangement request as follows: “The application you submitted on 24th March 2025 for a Flexible Work Arrangement has been reviewed. The application is not able to be approved at this stage in its current form due to operational factors, specifically, resourcing constraints in the Utilities area meaning that we are unable to backfill the vacant portion of your role as per your request at this time. Should there be other points considered as part of your application, please send through for final consideration.” [22] On or around 8 August 2025, Mr Dale had a discussion with Mr Ireland regarding his refusal of the flexible work arrangement request. Mr Ireland said words to the effect: “We could try to have another person achieve competency with the Panel, potentially as early as October 2026.” [23] Around the same time, Mr Dale and Mr Faherty jointly proposed to Mr Ireland that another employee, Mr Mick Kekewick, could stand in as Panel Operator whilst Mr Faherty was off work during their proposed job-share arrangement. Mr Ireland maintained this arrangement was unfeasible due to the consequential issue of two panel-trained operators being absent on the same shift. Relevant Legislation [24] Section 65 of the Act sets out the circumstances in which an employee may request a change in working arrangements, and provides, relevantly: “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. [2026] FWC 3329 7 (1A) The following are the circumstances: … (d) the employee is 55 or older; … (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; … 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.” [25] Section 65A of the Act provides that an employer must respond to a request made under s.65(1): “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 [2026] FWC 3329 8 (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)). [2026] FWC 3329 9 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.” Submissions and Evidence Applicants [26] The Applicants submit that the Respondent’s reason for refusal did not constitute a reasonable business ground within the ambit of s.65A(5) of the Act. [27] The Applicants submit the written refusals by the Respondent do not provide reasons for the refusal besides “operational factors”, those being the resourcing constraints in the Utilities Area in the case of Mr Dale, and the lack of a competent Panel Technician in the Utilities Area to cover the competency gap in the case of Mr Faherty. [28] The Applicants submit the reasons for refusal do not fall within the categories listed under s.65A(5) of the Act. For instance, the Applicants contend the Respondent has not suggested there was no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested. The Applicants further contend the Respondent has not asserted that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested. In the absence of such explanations, the Applicants submit that the Respondent does in fact have the capacity to change the working arrangements of other employees to accommodate the Applicants’ request. [29] The Applicants further submit that the Respondent’s treatment of other similar FWA requests demonstrates its refusal was not based on reasonable business grounds. An example was provided of an example of a Storage and Leading Panel Operator on ‘D’ shift, who is also the sole Panel Operator on that shift, who recently went on parental leave. The Respondent dealt with the issue by moving a Panel Operator from another shift onto the ‘D’ shift. [30] As another example, a Lead Technician on the ‘B’ shift in the Utilities Area has been on a part-time ‘flexi’ roster similar to the one proposed by the Applicants. The Applicants submit the Respondent changed the working arrangements of other employees to accommodate this specific employee’s request. [2026] FWC 3329 10 [31] The Applicants submit that there was no explanation as to why it was not operationally viable to move personnel around to accommodate the Applicants’ request whilst training new employees to be able to perform the roles. [32] The Applicants submit that the flexible working arrangements requested by the Applicants is not unheard of at Prelude, and the flexible working arrangement system itself is advertised as a perk of working for the Respondent. Respondent [33] The Respondent submits there is an insufficient nexus between the flexible working request and the employee’s particular circumstances. The Respondent relies on authority from Lloyd v Australia and New Zealand Banking Group Ltd3(Lloyd) to establish this requires proof of an objective and rational connection between the circumstance of the employee and the request. [34] The Respondent relies on Fogo v Boeing Aerostructures Australia Pty Limited4(Fogo) to establish that it is not automatically the case that an employee 55 years of age or older will satisfy the requirements stipulated in s.65(1)(b). In that case, the employee did not specify in their request when they intend to retire or indicate to their employer when they would be able to decide to retire if the flexible working request was accommodated (particularly in circumstances where the employee was only 61 years old). Because the Applicants did not specify their intention to retire, the Respondent submits it is doubtful that they have established this nexus requirement. [35] The Respondent submits that although the Applicants refer in their respective FWA requests that the benefit in the proposed part-time arrangements is that they will be able to spend more time at home and with family in advance of retirement, the Applicants already work a quasi part-time arrangement which allows for this. Specifically, Prelude’s roster cycle means they are only at work 40% of the year and are at home the other 60% of the year. [36] The Respondent submits the Applicants have not provided any evidence as to how a further reduction in hours, meaning they would work only 20% of the year, would consequently assist. The Respondent also relies on Hutchinson v Cleanco Queensland Ltd5 in submitting that the Commission recently observed the purpose of s.65 of the Act is not to promote a ‘work- life’ balance, and that a desire to spend more time with family is not a relevant consideration under s.65(1A) of the Act. [37] The Respondent submits the reasonable business grounds it relied upon to justify refusal of the Applicants’ requests were resourcing constraints in the Utilities Area that meant the Respondent was unable to: (a) in the case of Mr Faherty’s FWA request, backfill the vacant portion of his Panel Technician position; and (b) in the case of Mr Dale’s FWA request, backfill the vacant portion of his Production Technician role [2026] FWC 3329 11 [38] The Respondent asserts that the job arrangement proposed by the Applicants do not assist in resolving these resourcing constraints because they do not hold the same competencies. Specifically, Mr Dale does not hold the competencies required to perform the Panel Technician position held by Mr Faherty and could not obtain them quickly. This would result in a gap in coverage of Mr Faherty’s Panel Technician position that would need to be addressed when Mr Dale would be performing his portion of the job share arrangement. In this sense, the Respondent submits the proposal could not be implemented as a true job-share arrangement. The Respondent submits that it does not have the resourcing available to backfill Mr Faherty’s Panel Technician position, nor is it able to accommodate a gap in that position due to operational and safety risks that would need to be managed if the gap was left vacant. [39] The Respondent submits that the Utilities Area requires more resourcing than other areas due to the size of the area and the number of safety critical systems it is responsible for. The Respondent submits Prelude operates in a highly complex and high-risk industrial environment requiring management of a number of significant safety hazards to workers on board, including fire and explosion hazards due to hydrocarbon processing, exposure to toxic substances, extreme weather conditions, and remote emergency response challenges. Prelude is also subject to a safety case, required under the Offshore and Greenhouse Gas Storage Act 2006 (Cth) and regulated by the National Petroleum Safety and Environment Authority. The Respondent submits its safety case requires it to demonstrate that risks are reduced to as low as reasonably practicable, which significantly turns on meeting minimum manning requirements. [40] The Respondent submits that the standard manning levels it seeks to maintain in the Utilities Area each shift are two Panel Technicians and four Production Technicians. The Respondent notes that whilst there may be times where the Utilities Area operates with less than necessary manning numbers, this is because the Respondent has been unable to source the appropriate coverage to address the gap, and it not a deliberate choice by it. The Respondent’s preference is to always operate above minimum manning requirements possible to maintain both safety of the facility and production. [41] The Respondent submits that maintaining adequate resourcing in the Utilities Area which the Applicants work in is particularly critical from a safety perspective as this area is responsible for maintaining the systems that maintain the habitability of the Prelude for workers, including electricity, water and communication. On this basis, the Utilities Area can be distinguished from other areas of the facility. For example, the Respondent submits other areas of Prelude could be shut down if the required manning numbers cannot be obtained, without compromising the habitability of the facility. This is not an option for the Utilities Area, as temporarily shutting down the area would present an immediate safety issue. In fact, in extreme circumstances, the Respondent submits a prolonged outage of the Utilities Area would result in the evacuation of Prelude. As such, the Respondent notes it rosters two Panel Technicians in the Utilities Area because if an emergency arose, two Panel Technicians could respond more quickly to issues. The Respondent submits this rostering arrangement is also to ensure coverage over the control panel in the event one Panel Technician is unavailable, for example whilst on break or due to unplanned absence. [42] The Respondent submits training to obtain the requisite competency for this position occurs whilst on-the-job. Given full-time employees on Prelude only work 40% of the year, [2026] FWC 3329 12 competencies related to panel operation generally take over a year to gain for employees who already work on Prelude. This does not account for new employees. Thus, the Respondent submits ensuring employees maintain high levels of competency in their area can be challenging where they only work on Prelude for 40% of the year (or less, for part-time employees). [43] The Respondent submits that it does not have another employee with the required competency available to maintain two Panel Technician coverage in the Utilities Area for the Applicants’ shift. Whilst the Respondent has taken steps to begin training another employee to hold the relevant competency for this role, the Respondent submits this employee is not expected to achieve that competency until October 2026. [44] The Respondent submits that the ability to source coverage for resourcing gaps on the Prelude is already limited by: (a) absenteeism rates on Prelude generally (15% - 20% at last count) which means that Team Leads on Prelude already spend a significant amount of time working to make arrangements to cover gaps arising from planned (e.g. parental leave) or unplanned absences (e.g. sick leave); (b) the availability of the employees with the right competencies and experience in a certain area to backfill coverage gaps, noting the Utilities Area as a whole is currently operating at reduced resourcing and the high absenteeism rates on Prelude generally; (c) the limitations and unsustainability of using overcycle (overtime) to provide coverage, considering fatigue requirements and the time required for an employee to travel to Prelude to start their shift earlier (or conversely the reduction of their next ‘off- shift’ break if they have had to stay on Prelude longer than planned before travelling home); (d) the cost of overcycle, which for a full shift attracts a loading of 150%. [45] In regard to the Applicants’ assertions that another employee in similar circumstances was granted their FWA request, the Respondent asserts each request must be assessed on its own merits, having regard to the operational requirements present at a particular time and taking into account the nature of the employee’s specific role and work circumstances. As such, the fact that a flexible working arrangement was granted to a particular employee does not necessarily provide a ground for another employee having their request granted. Applicants’ Reply [46] In response to the Respondent’s contention that there is an insufficient nexus between the Applicants’ flexible working request and their particular circumstances, the Applicants submit the Respondent relies on an overly narrow and technical interpretation of s.65(1)(b) of the Act. Specifically, the Applicants contend the Respondent’s construction of the provision is [2026] FWC 3329 13 inconsistent with Poppy v Service to Youth Council Inc [2014] FCA 656 at [147]-[148], where White J stated: “I am unable to discern any legislative intention that a failure by an employee to give reasons for a request for flexible work arrangements will, in all cases, preclude the request from being a request for the purposes of s 65. The circumstances in which employees may make a request pursuant to s 65 are diverse. They are not confined to parents returning from parental leave, or parents with childcare responsibilities. In some circumstances, the reasons for the request are likely to be obvious. The present case, when considered objectively, seems to be an example of this kind. However, in other cases, the reasons will be less obvious. This diversity of circumstances makes it unlikely, in my opinion, that the legislature intended that in all cases an omission by an employee to give reasons will, without more, relieve an employer from responding to the request. It is to be expected that s 65 will be invoked by persons without legal training or advice and with a degree of informality. Many employees may know of their entitlement to make the request, but not the precise terms of the statute creating that entitlement. This too suggests that s 65 should not be construed with an eye attuned to technicality. It is reasonable to suggest that the legislature intended that employers should not be able to avoid compliance with s 65 on the basis of some technical deficiency in the way in which a request is framed, at least when they can be taken to know both the nature and purpose of the request.” [47] The Applicants further submit the Act’s Revised Explanatory Memorandum (REM) expressly indicates Parliament deliberately chose not to impose rigid evidentiary standards or require employees to provide detailed documentation with their initial requests. The Applicants submit the legislative intention was to facilitate early, constructive discussions, rather than create technical grounds for rejecting requests. The Applicants rely on the below excerpt from the REM: “These provisions are not intended to limit the timing or nature of discussions about flexible working arrangements generally. For example, where an employee can foresee that he or she may need to assume caring responsibilities in the short to medium term, it is anticipated that the employee could commence discussions ahead of assuming those responsibilities to ‘flag’ that a request in accordance with these provisions may be coming, and to give the parties an opportunity to explore suitable alternative arrangements that accommodate the needs of both parties. Consistent with the current operation of the right to request provisions and the intent of these provisions to promote discussion between employers and employees about flexible working arrangements, there is no evidence requirement attaching to the request. It would be expected that documentation relating to the particular circumstances of an employee would be addressed in discussions between employers and employees.” [emphasis added] [48] The Applicants further submit that the various case law the Respondent has relied on for its assertion with respect to this contention are distinguishable from this matter and ultimately support the Applicants’ position. Specifically, the Applicants assert that the case of Lloyd involved a tenuous connection between age and a specific pandemic-related risk. The case of Fogo involves a similar request for flexible work arrangements. The Applicants submit [2026] FWC 3329 14 the present matter is fundamentally different from these cases, as they concern a reduction of hours in work which bears a direct, obvious and rational connection to transitioning towards retirement. [49] The Applicants submit this distinction is recognised by the Commission in Farquharson v CCL Label Australia6, (Farquharson) which found that a request relating to a change in working hours for an employee aged 55 or older had a sufficient nexus with the request for so as to enliven the Commission’s jurisdiction over the matter. In Farquharson, the change of hours from part-time to full-time work sufficiently connects to being aged 55 year or over with regards to the transition to retirement given the Applicants are seeking a better work, life and community balance, as well as ability to spend more time with family. The Applicants submit this is directly analogous to the Applicants’ requests. [50] In response to the Respondent’s submission that the Prelude roster cycle already incorporates a part-time component and that a further reduction in hours would be of no assistance, the Applicants submit this fails to consider that the ordinary hours worked by the Applicants, as provided for in clause 5.1 of the Shell Prelude Enterprise Agreement 2022, equates to that of an employee who works Monday to Friday, 9am to 5pm. The Applicants work far beyond the regular 9am to 5pm, working 12 hours a day for 21 days straight. [51] In response to the Respondent’s submission that the purpose of s.65 is not to promote a work life balance, the Applicants rely on Farquharson in submitting that in the case of an employee aged 55 years or older, work, life and community balance, while not going to the purpose of the section, are necessary considerations in determining nexus between being aged 55 years or older and the requested FWA. [52] In response to the Respondent’s assertion that employers may refuse a FWA request for ‘almost any reason they see it’, the Applicant submits this interpretation is incorrect. Although the authority relied on by the Respondent in making in assertion, Police Federation of Australia (Victoria Police Branch) T/A The Police Association v Victoria Police [2018] FWC 5695, does provide that an FWA may be granted for ‘almost any reason’, the Applicants assert it also provides a list of principles ‘pertinent to a decision to refuse’ at [44] and [45]. The Applicants contend this list of qualifications makes it clear the Commission must balance the needs of each party when reviewing a s.65 application. [53] The Applicants make a further submission that the Respondent has not met the requirements stipulated in s.65A(2) and (3) of the Act. [54] As s.65A(2) of the Act relates to form, requiring the written response to include the employer’s refusal and matters stipulated under s.65A(6) of the Act, the Applicants submit the Respondent did not meet s.65A(6) of the Act by failing to detail the reasons for refusal, including how the reasonable business grounds for requesting the refusal applied to the FWA request. [55] Further, the Applicants submit the Respondent failed to satisfy s.65A(3) by failing to genuinely try and reach an agreement with the Applicants. Specifically, the Applicants contend the requests were denied before the Respondent made any attempt to discuss the request and other potential options. The Applicants note that whilst the Act does not stipulate steps to try [2026] FWC 3329 15 and reach a genuine agreement, a commonsense and practical approach requires the initiation of meaningful discussions, the evaluation of whether the FWA could benefit the organisation, identifying actual changes to accommodate the request and assessing the individual merits of the request. The Applicant relies on the authority of Naden v Catholic Schools Broken Bay Limited as Trustee for the Catholic Schools Broken Bay Trust [2025] FWC 317 at [85] in making this submission. Further in regard to s.65A(3), the Applicants submit that the Respondent’s assertion that the Applicants’ personal circumstances were considered is not supported by evidence. [56] In light of this, the Applicants submit the Respondent’s written refusals for the FWA, although specify resourcing constrains as the reason for refusal, did include information to substantiate these resourcing constraints. On this basis, the Applicants contend the requirements of s.65 of the Act have not been met in both form and substance by the Respondent. Respondent’s Further Reply [57] In response to the Applicants’ submission that the Respondent failed to satisfy s.65A(3)(a) of the Act and genuinely reach an agreement with the Applicants with respect to their requests, the Respondent submits that several discussions took place between Mr Ireland and each Applicant which indicate the contrary. The Respondent provides the following examples of such discussions, which occurred prior to the Respondent’s refusal of each FWA request: (a) In Mr Dale’s Form F10C, he notes at Q12 that “Mark responded to both requests via email as well as verbally” and at Q14 that “Mark has held discussions with Sean and me both individually and collectively. Mark has proposed training another person to achieve P2 certification, potentially as early as October 26th”. (b) In Mr Faherty’s Form F10C, he refers to having “verbal discussions with Mr Ireland” at Q14, including on or around 3 August 2025 about how Mr Faherty could “go into flexible work arrangements”. (c) In the Witness Statement of Mr Ireland, dated 25 November 2025, Mr Ireland details discussions he had with both Applicants prior to the refusal of their FWA requests, and his efforts to explore the ways in which their FWA requests may be able to be accommodated. (d) In the Witness Statement of Mr MacGillivray, dated 22 October 2025, Mr MacGillivray indicates that he was consulted on the Applicants’ FWA requests by Mr Ireland. [58] In response to the Applicants’ submission that the Respondent failed to comply with s.65A(3)(c) of the Act by not having regard to the consequences of the refusal of the FWA requests, the Respondent submits this allegation appears to hinge on there being a lack of discussion between the Applicants and the Respondent about their requests. However, considering the abovementioned evidence, the Respondent submits there were several meaningful discussions between both Applicants and the Respondent. The Respondent further relies on paragraph [14] of the Witness Statement of Mr MacGillivray indicating that he did not [2026] FWC 3329 16 make the decision to refuse the requests lightly and considered the personal circumstances of the Applicants in doing so. [59] The Respondent further submits that the correct approach to s.65A(3) is that adopted in Chandler v Westpac Banking Corporation7, namely that Westpac’s failure to meet certain requirements set out in s.65A of the Act did not necessarily mean that the dispute must be resolved by granting the employee’s FWA request, but rather, should be taken into account in the exercise of the Commission’s discretion under s.65C of the Act. [60] In response to the Applicants’ submission that the Respondent failed to satisfy s.65A(6) and therefore, s.65A(2), by failing to detail reasons for the refusal, including how the reasonable business grounds for requesting the refusal applied to the FWA requests, the Respondent contends that the below communications set out the reasonable business grounds for refusal and how these were connected to the FWA requests: (a) In the case of Mr Faherty, the email sent to him by Mr Ireland communicating the refusal stated that: “the application is not able to be approved in its current form due to operational factors, specifically, the lack of Competent Panel Technician in the Utilities Area available to cover the gap your flex work roster would leave”. (b) In the case of Mr Dale, the email sent to him by Mr Ireland communicating the refusal stated that: “the application is not able to be approved at this stage in its current form due to operational factors, specifically, resourcing constraints in the Utilities Area meaning that we are unable to backfill the vacant portion of your role as per your request at this time.” Eligibility/validity to bring the applications [61] It is important to differentiate between having eligibility to make a request for a flexible working arrangement and making a valid application in accordance with s.65(1), s.65B and s.65C of the Act. If the request is not validly made, the Commission does not have jurisdiction to arbitrate.8 [62] The Applicants are aged at least 55 and have met the minimum criteria of having been employed for 12 months. To be able to validly bring the applications the request for changed work arrangements must be “because of” having reached the age of 55. The request must relate to the relevant circumstance in s.65(1A). Mr Faherty [63] In evidence given during the hearing of this matter, Mr Faherty was reminded that when he first made his application, he stated that it was to spend more time with family. In oral evidence he stated that he has seven siblings aged 40 to 59. Three live overseas, one lives in Townsville and another in Cairns. Mr Faherty did not state that he resides with family and when asked for the reasons why he wishes to reduce his work time by 50% he confirmed that it is to visit his siblings. He also stated it is to reduce time at work. [2026] FWC 3329 17 [64] Mr Faherty stated that if the request to work part-time is not approved he may consider resigning and use passive income through ETF’s and other investments. He stated that he has a significantly sized superannuation amount. Of course, Mr Faherty generally cannot access his superannuation until aged 60. I understand Mr Faherty to be younger than 60 years of age. [65] In oral evidence, Mr Faherty stated that if a part-time arrangement was implemented for a period of two years, if he was asked after that time to return full-time, he’d either agree or he would resign. He stated that if it came to being required to return full-time, if he wasn’t agreeable to it, he would rather resign on his own terms. Mr Faherty considers that he has put his time into the workplace and it takes its toll. He stated that going to part-time work would be a breath of fresh air. Mr Dale [66] Mr Dale gave oral evidence that on account of having broken his back in January 2024, he would like to have more regular physiotherapy appointments. He stated that he is still under a care plan from his doctor and it is best if he has a five-to-six week stretch of physiotherapy appointments. He said that only having a five-week stretch off work, together with taking about one week to recover from a 21-day swing means that he can reasonably only have four weeks of physiotherapy before going back to work. [67] He stated that physically he is a lot better than when he first broke his back, but due to it being a compression fracture, it’s not something that will ever fully recover. His best efforts are to strengthen the muscles around the fracture. He considers it to be a personal injury but considers it may have occurred at work. [68] I requested further evidence of Mr Dale in respect of his physiotherapy appointments. Following the December 2025 hearing, Mr Dale filed a supplementary witness statement. His evidence is as follows: • Following a CT scan it was determined that he has a 20% compression fracture; • His physiotherapy appointments were on 20 February 2024 and 27 February 2024; • He could not attend a 24 March 2024 physiotherapy appointment due to work commitments; • He received a home exercise program; • On 1 May 2024 he received another program and told to return in four weeks. He was unable to do so due to work commitments; • The care plan nurse suggested yoga to which he signed up for Bikram yoga classes. He obtained some relief but the classes were too far from home and there was travel through traffic; • He manages his own routine and rests when at home; and • When at work some tasks cause some pain. On those occasions he takes painkillers and stretches. Even when not in pain, he stretches. [69] In closing submissions, the Respondent noted that Mr Dale has not, it seems, had any appointments in respect of his back injury since March 2024. [2026] FWC 3329 18 [70] Mr Dale said that one of the reasons he wishes to work part-time and reduce his hours and income to approximately $150,000 per year is to understand what it is like to live off a reduced income and to understand the changes he and his wife would need to make to accommodate a reduced income. Mr Dale stated that he is aware that the approximate $300,000 paid to him is a very good wage and the idea of reducing it to approximately $150,000 per annum “wouldn’t pass the pub test”. [71] Mr Dale noted that he is unlikely to have $150,000 per annum income once he retires as his pension/investments will not return that amount of income. He stated that he considers that while the Respondent is of the view that he only works 40% of the time, he understands that over the year he works approximately 50-60 hours more than average workers. He stated that he is aware of employees who have worked similar swings who, upon retirement, have divorced because it is then a different situation when at home; “every day, all the time and you’ve got no work to go to”. He considers that after 40 years of working, reducing to part- time work is a dignified transition into retirement. He would like to have his wife get used to him being at home for a period of 12 weeks, rather than the four and five weeks in the off swing. Further, he would like to travel. Consideration [72] There are authorities of the Commission having determined in each particular case whether there was a nexus between seeking a flexible workplace agreement was “because of” the person being at least 55 years of age to satisfy the jurisdictional requirement. Some of those are discussed below. [73] In Farquharson9, Deputy President Anderson was tasked with determining if Ms Farquharson was advancing her roster change request on the ground of age? The Deputy President determined it was became she is at least 55 years of age. [74] In Lloyd10, Deputy President Masson stated: “[51] The requirement for a ‘nexus’ to be established between one of the ‘circumstances’ in s 65(1A) and the request suggests that more is required than simply identifying that the employee satisfies one of those circumstances. In my view there needs to be an objective and rational connection between the circumstance of the employee and the request.” [75] In Ms Lloyd’s case, she had requested to work from home full-time on account of her age of 62 and her concerns of contracting COVID-19. Deputy President Masson determined that there was no rational connection between her age and the request. [76] In the case of Mr Faherty, it is clear that he is financially well-off, considers that he has worked a long time doing the work he does with the Respondent, and wishes to have periods of up to 12 weeks (less approximately one week to be said to recover from three-week swings) to travel and visit siblings. It is his desire not to work full-time. [77] In respect of Mr Faherty, I am not satisfied that there is an objective and rational connection between the circumstances of him being at least 55 years of age and the request to [2026] FWC 3329 19 reduce his work to part-time and job share with Mr Dale. I appreciate that while at work for the three weeks, the work is intense, and there is some time required on the return home to recover. The recovery eats into the beginning of the four weeks off and the five weeks off before Mr Faherty returns to do a further three-week swing. [78] There is no evidence before the Commission that on account of Mr Faherty being at least 55 years of age, his experience of the rigours of the work are amplified when compared with a like person aged under 55 years. Mr Faherty has not complained of becoming more fatigued on account of his age. Whilst he has said that he has worked on the platform for a period of 12 years, and he’d prefer not to work full-time on the platform and can financially afford not to, these are facts that could equally apply to a person aged under 55. [79] Mr Faherty’s desire to travel for periods greater than four weeks or five weeks during his off cycle has no objective and rational connection to his age. [80] Accordingly, I am not satisfied that the nexus of seeking a flexible workplace agreement was because of Mr Faherty being at least 55 years of age. [81] In the case of Mr Dale, it is disappointing that Mr Dale’s evidence in respect of his desire to attend regular physiotherapy sessions did not match how often he actually attends physiotherapy sessions. At the time of the hearing in late 2025, he hadn’t attended a physiotherapy session in more than 18 months. Concerningly, Mr Dale stated the following when he made his FWA request in March 2025: “Additionally, after breaking my back last year, I have ongoing health issues that require extended physiotherapy. Being at home more often would provide me with better access to the necessary treatments, potentially leading to a quicker recovery.” [82] Whilst Mr Dale still has, it is accepted, some pain from his injury, it cannot be said that working part-time will enable him to better manage his condition. He presently has periods of four weeks and five weeks off work but has chosen not to have treatment. [83] Mr Dale has stated that he would like to get used to earning approximately $150,000 per annum, down from $3000,000 per annum, together with being at home for a period of up to 12 weeks at a time in a way to transition to retirement. There is nothing preventing Mr Dale from redirecting part of his remuneration into an alternative account and using best endeavours to largely forget its existence until it is required at a later time. Further, it is difficult to accept that spending nine weeks at home every 15-week cycle is vastly different to spending 12 weeks at home in every 15-week cycle, whilst acknowledging that the nine weeks is broken into four and five week segments. As for Mr Dale’s desire for further travel, there appears to me to be sufficient opportunity to travel in the off-swing. [84] In respect of Mr Dale, I am not satisfied that there is an objective and rational connection between the circumstances of him being at least 55 years of age and the request to reduce his work to part-time and job share with Mr Faherty. [2026] FWC 3329 20 Determination of the validity to bring the applications [85] Based on the foregoing I am not persuaded that there is an objective rational connection between the age of Mr Faherty and Mr Dale (being over 55) and the request made by each of them. As such, the Applicants have not made a request within the meaning of s.65(1) of the Act. As such, there can be no dispute about such a request that is capable of being arbitrated by the Commission under s.65B(4)(b) of the Act. Refusal of the request on reasonable business grounds [86] If, however, I am wrong in that conclusion and was required to determine the dispute in respect of the Applicants, I would likely find that from January 2027, on account of the Respondent having trained another employee in Mr Faherty’s role (the more technical role), I would make an order for a period of up to two years (with contingencies) as sought by the Applicants. [87] The Commission has heard evidence that the Respondent has been training another employee and that it takes approximately 18 months to do so. At the time of the hearing, it was anticipated that the employee would be trained by October 2026. The Commission has not been otherwise advised. If the employee is ready, it appears to me that there could be opportunity for the Respondent to come to an agreement with the Applicants to possibly trial a part-time arrangement, even if contingencies are necessary. Those contingencies might include: • The trained employee (or a suitable alternative) being competent, fit, willing and able to perform the duties of Mr Faherty and Mr Dale such that they could work three weeks in each 15-week cycle; and • In the event that either of the Applicants resigns his employment or is unable to work for a relevant period of time, or in the event of death of either employee, the arrangement ceases with an appropriate period of notice and the continuing employee is then required to return to the pre-arrangement hours of work. [88] It is noted that the Applicants are valuable employees and certainly in the case of Mr Faherty, very difficult to replace. He may choose to resign from his employment in the near future. The Respondent is encouraged to consider how difficult it would be to replace Mr Faherty if he chooses to leave his employment. [89] If any trial were to be agreed between the parties, in my view it would be appropriate to put an expiration date on the trial to allow the Respondent to consider its position as to the success of the trial. It is possible that by the term of the trial the Applicants may be in a position to satisfy the nexus required by the Act. [90] If I had found a nexus and had determined it appropriate to make an order pursuant to s.65C(1)(b)(ii), I would put a time limit on the order together with the above contingencies on account of the symbiotic nature of the two employees’ requests. Circumstances can change and I have formed the view that orders made pursuant to s.65C granting a flexible working arrangement should be time-limited as a standard and only open-ended in extraordinary circumstances. [2026] FWC 3329 21 [91] The issue of what rights, if any, an employer might have to seek a review of an order made by the Commission where an employee’s circumstances have changed, and where the order granted does not have an expiration date, was put to the parties for their consideration. For example, if the Commission were to make an order permitting an employee to work from home on account of relevant caring responsibilities and that employee no longer held those caring responsibilities. I questioned the parties as to what rights the employer might have available to have the order varied or revoked given there does not appear to me to be any particular or obvious application the employer could make to the Commission to have the issue redetermined. [92] The Applicants submitted that if an order did not have an expiration date and circumstances changed, an employer could seek to have an order varied or revoked pursuant to s.603(2) of the Act. The Respondent submitted that there is a real question as to whether there is power under s.603 of the Act to vary or revoke an order and the power has only been generally exercised where there has been a change in circumstances, or where the initial decision was based on incomplete or false information, fraudulently procured or otherwise.11 [93] The Respondent stated that it has not identified any other mechanism under the Act, other than s.603 that would allow it to seek to have the order varied or revoked, including where it is unable to comply with that order. [94] I concur that there is uncertainty as to the Commission’s power to deal with a matter when a person’s circumstances change following an order being made. I do not consider that an employer should be burdened with workplace limitations when the reasons for the making of an order might no longer exist. Again, for those reasons, if I had determined it available and appropriate for the Commission to have made an order, I would have put a time limit on the order, together with relevant contingencies. Conclusion [95] I find pursuant to s.587(1)(a) of the Act that the FWA requests made by Mr Faherty and Mr Dale were not validly made under s.65(1A) of the Act. The applications are dismissed. COMMISSIONER [2026] FWC 3329 22 Appearances: J Duan, for the Applicants. R Dawson, for the Respondent. Hearing details: 2025. Brisbane, by video using Microsoft Teams 28 November and 3 December. Final written submissions: 2025. 5 December. Printed by authority of the Commonwealth Government Printer <PR813880> 1 Witness statement of Sean Faherty, [7] and [9]. 2 Ibid, [16]. 3 [2024] FWC 2231. 4 [2024] FWC 3037. 5 [2025] FWC 2887 at [35]-[37]. 6 [2024] FWC 670. 7 [2025] FWC 3115. 8 Quirke v BSR Australia Ltd [2023] FWCFB 209. 9 [2024] FWC 670 (n 6). 10 [2024] FWC 2231 (n 3). 11 Garabovsky v United Protestant Association of NSW Ltd T/A UPA [2015] FWC 5161 at [38].