FWC Full Bench clarifies interaction between NES and Enterprise Agreement in Flexibility Ruling

FWC recently in Paper Australia Pty Ltd Trading as Opal Australian Paper v Anthony May [2025] FWCFB 224 confirmed that an employer cannot rely on an enterprise agreement to override an employee’s right to request flexible work under the National Employment Standards (NES).

The case involved a team leader who had informally worked a flexible Thursday shift for 13 years to help care for his children. When Paper Australia ended the arrangement citing non-compliance with its enterprise agreement, the employee made a formal request under s65 of the Fair Work Act. The company rejected it, arguing the agreement’s roster clause required consensus from all parties and therefore constituted “reasonable business grounds”.

Commissioner Yilmaz disagreed, finding the refusal was not based on genuine operational concerns and that the agreement could not detract from the NES. The Full Bench upheld her decision, confirming that the NES prevails where agreement terms are detrimental to an employee’s minimum entitlements.

The Full Bench also clarified that the recent Secure Jobs Better Pay amendments did not alter the nature of “reasonable business grounds” and rejected the employer’s argument that the ruling would undermine rostering provisions for other employees.

Our Take

This decision reinforces a key principle: enterprise agreements cannot override the NES. Employers must assess flexible work requests on their merits—not just on what’s written in an EA.

The employer’s refusal was based solely on compliance with a roster clause, without any real consideration of cost, productivity, or efficiency. That’s not enough. The NES provides a minimum standard and agreements must not exclude or reduce those rights.

For HR teams and employers, this is a reminder to treat flexibility requests seriously and to ensure that agreement terms don’t inadvertently block access to minimum lawful entitlements.

Action Items

• Review Enterprise Agreements - Check that no clauses inadvertently conflict with NES provisions, especially around flexible work. Theoretically this should have been picked up at the EA approval stage – but it clearly was only apparent when the clause was practically tested.

• Assess Requests on Genuine Grounds - Ensure refusals are based on real operational impacts—not just procedural barriers. Evidence in this area is critical.

• Train Managers on NES Compliance - Make sure decision-makers understand that NES rights take precedence over agreement terms.

Edge Legal

Relationships. Respect. Results