1 Fair Work Act 2009 s.65B - Application for a dispute about requests for flexible work arrangements Rabin Gurung v Knauf Gypsum Pty Ltd (C2026/4492) COMMISSIONER MATHESON SYDNEY, 26 JUNE 2026 Application to deal with a dispute about the right to request for flexible working arrangements [1] Rabin Gurung (Applicant) has made an application to the Fair Work Commission (Commission) to deal with a dispute about flexible working arrangements under Part 2-2 of the Fair Work Act 2009 (Cth)(Act). The Applicant’s employer and respondent to the application is Knauf Gypsum Pty Ltd (Respondent). [2] The Applicant seeks the ability to work from home on Mondays and Fridays.1 Background [3] The Applicant commenced employment with the Respondent on 14 April 2020 as a full- time Payroll Officer.2 During the Covid-19 pandemic the Respondent put into place working from home measures in line with state-based government mandates.3 In February 2022 the Respondent requested employees return to the office upon the ease of Covid-19 restrictions for a minimum of three days per week.4 [4] The Respondent formalised a Hybrid Work Policy (Policy) effective 1 May 2024 which states that: “An employee whilst operating under a Hybrid Work Arrangement, cannot also be acting as the primary carer of a child who is primary school aged or younger, during business hours.”5 [5] On 26 April 2024 the Applicant applied for Hybrid Work Arrangement under the Policy which was approved and became effective from 2 May 2024 and enabled the Applicant to work from home on Mondays and Fridays.6 On 29 September 2025 the Respondent informed employees the Policy would be discontinued effective 1 January 2026 however as the Applicant was on extended leave at that time he was verbally advised by his manager on 6 November 2025.7 [2026] FWC 2371 DECISION [2026] FWC 2371 2 The Applicant’s request for flexible working arrangements [6] On 21 January 2026 the Applicant wrote to the Respondent indicating that he would like to change his working arrangements such that he would work from home every Monday and Friday. [7] Section 65(1) of the Act provides that 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. [8] It is not in contention, and I find that one of the circumstances referred to in s.65(1A) applies to the Applicant. In particular, the Applicant has two children aged 2 and 4 years and is therefore the parent of a child who is of school age or younger (s.65(1A)(a)). The Applicant said he requested to work from home on Mondays and Fridays due to his family responsibilities and his role as primary carer of his children on those days.8 The Applicant’s children do not attend daycare on Mondays and Fridays and remain at home on those days.9 I find that the Applicant would like to change his working arrangements because he is the parent of a child who is of school age or younger (s.65(1)(b)). [9] Section 65(2)(a) of the Act relevantly provides that the employee is not entitled to make the request unless, for an employee other than a casual employee, the employee has completed at least 12 months of continuous services with the employer immediately before making the request. The Applicant is a full-time employee who commenced employment with the Respondent in April 2020 and I find that the Applicant completed at least 12 months of continuous service with the Respondent immediately before making the request. The Applicant was therefore eligible to make a request under s.65 of the Act. [10] The request was in writing (s.65(3)(a)). While the request includes limited detail concerning the reasons for the request, the request: • set out the details of the change the Applicant sought, i.e. the ability to work from home every Monday and Friday; and • provided the reasons for the change sought in stating that the changes would assist the Applicant because he was the parent/guardian of a child who is of school age or younger. [11] I find that the request made by the Applicant on 21 January 2026 (Request) met the formal requirements in s.65(3) of the Act. Discussions about the request [2026] FWC 2371 3 [12] The Respondent said that since the Applicant submitted his Request, discussions occurred in relation to the Request between the Applicant’s direct manager and the Respondent’s HR Director, Ms Borg.10 The Respondent said that it informed the Applicant that the Request could not be accepted in its current form and discussed various alternatives that it could offer.11 The Respondent said that meetings were held about the request on 3 February 2026, 13 February 2026 and 18 February 2026.12 This is supported by the Applicant’s evidence that following his Request, the Respondent met with him on several occasions in February 2026 to discuss his circumstances and possible alternatives.13 [13] The Respondent said when it was realised that agreement was unable to be reached through discussion, it confirmed the reasons for the refusal of the request and the alternative offer in a letter dated 20 February 2026.14 The Respondent’s written response to the request [14] The Respondent said when it was realised that agreement was unable to be reached through discussion, it confirmed the reasons for the refusal of the request and the alternatives offered in a letter.15 In particular, on 20 February 2026 the Respondent responded to the Request in writing (Response) indicating: • It met with the Applicant to discuss the Request and alternative options it had considered to help accommodate the Applicant’s circumstances. • The Applicant declined the alternative options put forward by the Respondent. • The Respondent was unable to approve the Request to work from home every Monday and Friday while the Applicant is the primary caregiver for his children on those days. [15] The Response set out the following reasons for the refusal of the Request: “1. Uninterrupted focus: The expectation of the Company is that all employees devote their full attention to their role during working hours. Unfortunately, it is difficult to conceive how you would be able to do this if you were to simultaneously have caring responsibilities for two young children who are not otherwise being cared for or entertained by someone else. This is particularly the case for someone in a role such as yours, where it is critical that you have uninterrupted focus when carrying out processing for payroll + UKG function with limited distractions to ensure there are minimum to no errors. 2. Performance and accuracy concerns: As you are aware while you have been working from home Mondays and Fridays under our Hybrid Work Policy for some time, we have noticed a marked drop in performance and attention to detail, and on occasions this has impacted your productivity, timeliness and efficiency of pay runs. Accuracy and having attention to detail is an inherent requirement of your position, and we have addressed these issues with you during your recent performance review on 29 January 2026. [2026] FWC 2371 4 3. Development target areas have not progressed to a satisfactory stage: In particular, the expectation that complex payroll and UKG (HRIS/payroll) processes be owned and managed end-to end without close supervision is not yet being met. As such, we require more complex tasks. We also expect more initiative to be taken and more often and consistently, considering length of service and the nature and seniority of your position.” [16] The Response went on to say: “We appreciate that being the primary caregiver for your children on these days can be difficult for you and your family, particularly if you have limited support in Australia. We have tried to support you as much as possible, however, we do need to ensure that we are operating effectively across our business. As you know, we need our payroll teams to deliver key functions and do so in a productive and efficient manner.” [17] The Response indicated that the Respondent had put forward the following alternative arrangements for the Applicant’s consideration to try and accommodate the Applicant’s circumstances: “1. Option 1: The option to work full time equivalent hours across four days per week (Monday – Thursday) 9.5hrs per day. This option would allow you to have Fridays off. 2. Option 2: Under this option, you could work shorter days on Monday and Friday (total of 4 hours 10am – 1pm), and longer hours on Tuesday, Wednesday, Thursday (8.66 hrs 8:30am to 5pm) to make up the full-time equivalent hours, to allow some dedicated time on Mondays and Fridays to care for the children. 3. Option 3: You could move to part-time employment working 24 hours per week (9am to 5pm) on Tuesday, Wednesday and Thursday. 4. Option 4: Shift arrangement e.g. working night or early mornings/afternoons whilst maintaining full time hours.” [18] The Respondent refused the Request, and I find that it did so in circumstances where: • the Respondent discussed the request with the Applicant (s.65A(3)(a)(i)); • the Respondent genuinely tried to reach an agreement with the Applicant about making changes to the Applicant’s working arrangements to accommodate the relevant circumstances (s.65A(3)(a)(ii)), as evident in the alternatives it put forward; • the Respondent and Applicant did not reach such agreement (s.65A(3)(b)); • the Respondent had regard to the consequences of the refusal for the Applicant (s.65A(3)(c)). [2026] FWC 2371 5 [19] While the written response was not provided within 21 days (s.65A(1)), the response was ultimately provided and: • stated that the Respondent refused the request; and • included the matters required by s.65A(6) (s.65A(2)(c)): o the details of the reasons for the refusal (s.65A(6)(a)); o the Respondent’s particular business grounds for refusing the request (s.65A(6)(b)(i)); o an explanation of how those grounds apply to the request (s.65A(b)(ii)); o the changes (other than the requested change) in the Applicant’s working arrangements that would accommodate, to any extent, the relevant circumstances and that the Respondent would be willing to make (s.65A(6)(c)(i)); o an explanation of the effect of s.65B and s.65C of the Act (s.65A(6)(d)). The dispute provisions within the Act [20] Section 65B(1) of the Act applies to a dispute between an employer and an employee about the operation of Division 4 of Part 2-2 of the Act if: (a) the dispute relates to a request by the employee to the employer under s.65(1) for a change in working arrangements relating to circumstances that apply to the employee; and (b) either: (i) the employer has refused the request; or (ii) 21 days have passed since the employee made the request, and the employer had not given the employee a written response to the request under s.65A. [21] The circumstances in s.65B(1)(a) and (b)(i) are met in this matter. [22] The parties to the dispute have attempted to resolve the dispute at the workplace level, by discussions between the parties (s.65B(2)). Those discussions have not resolved the dispute, and the Applicant was therefore able to refer the dispute to the Commission (s.65B(3)). The Commission first dealt with the dispute by means of mediation during a conference held on 24 April 2026 (s.65B(4)(a)). The dispute did not resolve the and Commission may deal with the dispute by arbitration in accordance with s.65C (s.65B(4)(b)). What orders can the Commission make? [2026] FWC 2371 6 [23] Section 65C(1) of the Act provides that for the purposes of s.65B(4)(b) the Commission may deal with the dispute by arbitration by making any of the following orders: (a) if the employer has not given the employee a written response to the request under s.65A - an order that the employer be taken to have refused the request; (b) if the employer refused the request: (i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or (ii) 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; (e) if the Commission is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under s.65A – an order that the employer take such further steps as the Commission considers appropriate., having regard to the matters in s.65A; (f) subject to s.65C(3): (i) an order that the employer grant the request; or (ii) an order that the employer make specified changes (other than the requested changes) in the employee’s working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a). [24] Section 65C(2) provides that in making an order under s.65C(1), the Commission must take into account fairness between the employer and the employee. [25] Section 65C(2A) provides that the Commission must not make an order under s.65C(1)(e) or (f) that would be inconsistent with: (a) a provision of the Act; or (b) a term of a fair work instrument (other than an order made under s.65C(1)(e) or (f)) that, immediately before the order is made, applies to the employer and the employee. [26] Section 65C(3) of the Act provides that the Commission may make an order under s.65C(1)(f) only if it is satisfied that there is no reasonable prospect of the dispute being resolved with the making of such an order. [27] In Ridings v Fedex Express Australia Pty Ltd T/A Fedex16 a Full Bench of the Commission considered orders made by Deputy President Lake at first instance and found: “[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 [2026] FWC 2371 7 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)).” [28] I consider that the prerequisites that need to be satisfied before the Commission can deal with a dispute include that: • a ‘request’ has been validly made under s.65(1) such that the dispute relates to a request by the employer to the employer under s.65(1) for a change in working arrangements relating to circumstances that apply to the employee (s.65B(1)(a)); and • either: o the employer has refused the request; or o 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under s.65A (s.65B(1)(b)). [29] A number of decisions of the Commission have considered the remaining matters in s.65A in respect of an employer’s refusal of a flexible working arrangement request. In Ridings v Fedex Express Australia Pty Ltd T/A Fedex17 a Full Bench of the Commission said: “[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 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…” [30] The above decision and provisions of s.65C suggest that where the Commission’s jurisdiction to deal with the dispute is enlivened the preconditions for arbitration are met, the Commission has a broad discretion as to whether and what orders to make, subject to the requirements in s.65C. [31] In the circumstances of this matter the Respondent has given the Applicant a written response to the Request and as such I have not made an order under s.65(C)(1)(a). Further, I consider that the Respondent has responded to the Request and has responded adequately and as such I have not made an order under s.65C(1)(e). I consider whether to make other orders of the nature permitted by s.65C below. Was the refusal on reasonable business grounds? [32] The Respondent has refused the Request and in those circumstances among the orders available to the Commission under s.65C is an order that: [2026] FWC 2371 8 (i) it would be appropriate for the grounds on which the Respondent refused the request to be taken to have been reasonable business grounds; or (ii) 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. [33] By reason of section 65A(3)(d) the Respondent was only able to refuse the request if the refusal was on reasonable business grounds and I have considered the grounds on which the request has been refused in deciding whether to make orders. [34] The Applicant is seeking to work from home on Mondays and Fridays as he is the primary carer of his two children, aged two and four, who are at home on those days. The Applicant is the primary carer of his children as his wife is pregnant with a third child and is suffering from a medical condition associated with her pregnancy such that the Applicant needs to be the primary carer for the children on Mondays and Fridays. [35] The Applicant is the lead for the Respondent’s ‘A1 payrun’ which the Respondent submitted is its most complex payroll run.18 The Respondent submitted that given the manual nature of the pay run when processing employee time cards a high level of focus and attention to detail is critical to ensure the process is completed accurately and efficiently.19 [36] One of the grounds on which the Respondent has refused the Request is that the Applicant’s caring responsibilities for two young children who are not being cared for or entertained by someone else will impede the Applicant’s ability to devote his full attention to the role and work with uninterrupted focus. The Respondent said this was particularly important for the Applicants’ role which involves payroll processing and a need to ensure minimal errors. [37] The Applicant did not agree that being a parent or primary caregiver automatically prevents an employee from effectively performing work duties from home and that the Respondent’s concerns rely on assumptions regarding caregiving responsibilities rather than specific evidence demonstrating the Applicant’s incapacity to perform his role while working remotely. [38] Performance concerns were referred to in the Respondent’s second ground for refusing the Request, being that while the Applicant had been working from home on Mondays and Fridays, it had noticed a marked drop in his performance and attention to detail which had impacted his productivity, timeliness and efficiency of pay runs. The Respondent attached a copy the Applicant’s most recent performance review which was completed in January 2026. Among the manager comments was a comment that they needed to see the Applicant “take on more complex items and maintain focus and attention to detail to consistently produce correct outcomes for the business.” The performance review allocated the Applicant a rating of “Partially meets Expectations”. The manager’s concluding comments in the performance review state that the Applicant is a valued team member who supports his teammates but goes on to state: “Unfortunately, there has been occasion within the review period where it was evident that more focus, care and time needs to be taken by [the Applicant] in order to find the right results for payroll queries or exceptions. This is the expectation I have of [the [2026] FWC 2371 9 Applicant] considering his length of services and position held, to ensue he has consistent quality of output and had embrace (sic) opportunities available to him to help develop in his role. [The Applicant] needs to take a more active approach in engaging with business and partnering and building relations with stakeholders/managers etc. I look forward to seeing [the Applicant] grow in his position as I believe he has more potential that he can unlock…” [39] In refusing the request the Respondent said the expectation that complex payroll and UKG (HRIS/payroll) processes be owned and managed end-to end without close supervision was not yet being met by the Applicant and that it required more complex tasks and more initiative to be taken by the Applicant more often and consistently. [40] The Applicant said he had consistently carried out the core responsibilities of his role and that while the performance review identified some development areas, including initiative, stakeholder engagement and improving focus in certain situations, he did not understand there to be any serious or sustained performance issue.20 The Applicant denied there had been a “marked drop in performance” and said he had not been provided with specific documented examples demonstrating material payroll failures or evidence directly linking alleged concerns to his working from home arrangement.21 [41] The Applicant submitted that he did not believe that sufficient evidence had been provided by the Respondent to establish that his requested arrangement would result in a significant loss of efficiency, productivity or operational capacity22 or that the concerns raised demonstrate a significant operational impact directly caused by his working from home arrangement.23 [42] While the Respondent acknowledged that a work from home arrangement had been in place for a period of time, it submitted there is an important distinction between prior arrangements for the Applicant and the circumstances now relied on by the Applicant in that during the Covid-19 pandemic, the Applicant did not have children and his first child was born at a time during which time his wife was also the primary carer.24 The Applicant’s second child was born in 2024 and the Respondent submitted that the Applicant’s carer responsibilities have now materially changed. 25 The Respondent submitted that to the extent that it may appear that it had previously accommodated the working from home arrangement, this was because the Respondent was unaware of the Applicant’s full circumstances, including that he was undertaking primary carer responsibilities for his children. [43] The Applicant’s children do not attend daycare on Mondays and Fridays and the Applicant says maintaining established routines has been an important consideration for his family, particularly while his children are still very young.26 The Applicant also said that while he is the primary carer for his children, he is not the sole carer.27 [44] I accept that a role involving payroll processing requires focus and attention to detail in order to minimise errors and ensure pay accuracy. While the Applicant suggests that the Respondent’s concerns rely on assumptions regarding caregiving responsibilities, I do not consider those assumptions to be misplaced. Children aged two and four years require a high [2026] FWC 2371 10 level of attention and care and are not of an age at which they are self-sufficient for significant periods of time. [45] The Applicant also said that while he is the primary carer for his children, he is not the sole carer.28 However the Applicant provided little detail about the capacity in which the other carer can provide support and also indicated that his wife’s pregnancy related medical complications prevented him from agreeing to alternative arrangements proposed by the Respondent.29 It is unclear what assistance the Applicant’s wife can provide in caring for the children while they are at home, if any. Based on the information before the Commission I do not consider that it is feasible for the Applicant to take on a role of primary carer of two children, aged two and four years, at the same time he is carrying out payroll duties in which uninterrupted focus is reasonably required. There is a very high risk of interruption while performing such work while caring for two very young children and I accept this gives rise to a real risk of error and inefficiency when performing an important and complex function. I also find, on the balance of probabilities, that the Applicant’s responsibilities as a primary carer for the children while trying to carry out his payroll work at the same time has contributed to performance concerns such that the Applicant is only “Partially” meeting expectations as reflected in his rating. [46] While I appreciate that maintaining a stable routine for the children is an important consideration for the Applicant, in the circumstances of this matter I consider that the Respondent had reasonable business grounds for the refusal of the request and I decline to make orders granting the request in its current form. [2026] FWC 2371 11 [47] I observe that the Respondent has indicated it remains willing to consider and accommodate an arrangement that would allow the Applicant to meet his carer responsibilities whilst also performing the inherent requirements and operational demands of his role. While the Applicant may need to be open to some changes to his working arrangements and/or the children’s caring arrangements, I encourage the parties to continue their discussions about alternatives that can better balance their mutual needs. COMMISSIONER Appearances: Mr. R. Gurung on his own behalf. Ms. K. Borg on behalf of the Respondent. Hearing details: 2026. 15 June. Sydney. Printed by authority of the Commonwealth Government Printer <PR811400> 1 Applicant’s Form F10C, q. 17. 2 Respondent’s Submissions at 1.1. 3 Respondent’s Submissions at 1.2. 4 Respondent’s Submissions at 1.3. 5 Respondent’s Submissions at 1.4, Annexure A. 6 Respondent’s Submissions at 1.5 7 Respondent’s Submissions at 1.7. 8 Applicant’s Second Statement at [3] – [4]. 9 Applicant’s Second Statement at [7] – [8]. 10 Respondent’s Correspondence to the Commission dated 16 April 2026. 11 Respondent’s Correspondence to the Commission dated 16 April 2026. 12 Respondent’s Submissions at 2.2. 13 Applicant’s Statement at [8]. 14 Respondent’s Correspondence to the Commission dated 16 April 2026. [2026] FWC 2371 12 15 Respondent’s Correspondence to the Commission dated 16 April 2026. 16 [2024] FWCFB 473. 17 [2024] FWCFB 473. 18 Respondent’s Submissions. 19 Respondent’s Submissions. 20 Applicant’s Statement at 10 -13. 21 Applicant’s Statement at [20]. 22 Applicant’s Statement at [22]. 23 Applicant’s Statement at [25]. 24 Respondent’s Submissions. 25 Respondent’s Submissions. 26 Applicant’s Second Statement at [5] – [9]. 27 Applicant’s Second Statement at [4]. 28 Applicant’s Second Statement at [4]. 29 Applicant’s Second Statement at [54].