The case of Paper Australia Pty Ltd t/a Opal Australian Paper v Anthony May1 considered whether an employer could rely on compliance with an enterprise agreement as reasonable business grounds to refuse an employee’s flexible working arrangement request under the Fair Work Act 2009 (Cth) (FW Act).
The key deficiency? A failure to provide a side‑by‑side comparison table of old and new classifications and overly optimistic framing of the changes.
Background
Mr May had a flexible arrangement with Opal Paper Australia since 2011 allowing him to finish early on Thursdays to meet his parental responsibilities around school pick up times and after school activities.
Following the introduction of a four-day work week in 2016, he was permitted to swap a 10-hour Thursday shift for an 8-hour day on Monday or Friday.
In July 2024, Opal Paper Australia withdrew these roster variations after an audit identified potential non-compliance with the enterprise agreement (EA); the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024
Mr May then made a formal flexible work request to continue finishing early on Thursdays.
Opal Paper Australia refused, citing that the EA did not permit these changes to rosters but offered “make-up time” as an alternative.
Commission Decision
Commissioner Yilmaz found the employer’s refusal was not based on reasonable business grounds under section 65C of the FW Act.
Key findings of the Commissioner included:
- The NES provisions allow flexible work requests regarding hours, start and finish times, and work patterns.
- An enterprise agreement cannot exclude or override the NES.
- Mere inconsistency with an EA is not a reasonable business ground to refuse a flexible work request.
Commissioner Yilmaz ordered Opal Paper Australia to grant Mr May’s request.
Appeal
Opal Paper Australia sought permission to appeal the Commissioner’s decision, and Ai Group sought leave to make submissions in support of Opal Paper Australia.
The Full Bench allowed the appeal on the basis that it raised public interest questions about:
- The proper construction of the FW Act’s flexible work provisions; and
- The interaction between the NES and enterprise agreements.
The Full Bench observed that:
- Examples of reasonable business grounds in the FW Act and its Explanatory Memorandum refer to practical operational impacts, such as cost, efficiency, or productivity, not compliance with industrial instruments. However, the list of examples is not exhaustive.
- Opal Paper Australia did not demonstrate that Mr May’s request caused operational or practical difficulties.
- Mr May had worked under the same arrangement for over a decade without issue.
- It may be different where a request would cause a contravention of working hours limits or safety regulations.
The Full Bench ultimately found that a term of an enterprise agreement cannot displace an employee’s NES right to request flexible working arrangements. Granting Mr May’s request would not have contravened the EA, as compliance with the NES prevails in the legislative hierarchy.
Key Takeaways for Employers
- Compliance with an enterprise agreement is not, by itself, a reasonable business ground to refuse a flexible work request.
- Employers must consider each request on its individual merits, focusing on operational or cost impacts that can be demonstrated with evidence.
- Enterprise agreement terms continue to operate for all employees, but they cannot override or narrow NES rights.
- When refusing a request, employers should ensure their reasoning is substantive and evidence-based, not merely based on contractual or administrative convenience.
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Footnotes
- [2025] FWCFB 224. ↩︎
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