MV Law Employment Newsletter – March 2026
Employment updates & tips for your business
Kellie Fitzpatrick v University of New South Wales [2026] FWC 677
The Fair Work Commission (‘FWC’) heard a recent dispute about a request for flexible work arrangement (‘FWA’). The employee sought to relocate interstate and work entirely remotely to care for her school-aged child (s.65(1A)(a) Fair Work Act 2009 (Cth)).
In her application, Ms Fitzpatrick disclosed that she currently lived in Sydney and had an approved FWA with her employer, UNSW to work part-time, two days from home and one day on site. This arrangement arose upon Ms Fitzpatrick’s return to work from parental leave.
However, Ms Fitzpatrck now sought to work remotely 100 percent of the time. The reason for the change was to enable Ms Fitzpatrick and her family to move interstate as her partner sought to take up a career opportunity.
As with all FWA requests, the FWC must consider if there is a sufficient connection between the eligibility ground (parental responsibilities) and the flexible work being sought.
Ms Fitzpatrick submitted that if the family moved interstate and she had to work on site, she would be unable to look after her child on such days. Whereas if the FWA was granted, this difficulty would be overcome.
The FWC found that there was, “no causal connection between the circumstance of Ms Fitzpatrick as a parent of a young child and her request to work full time from home, whether for a finite or indefinite period, to support a move interstate.”
The FWA dispute application was dismissed.
Key Takeaways:
When bringing FWA requests, the employee needs to clearly show that the request for flexible work is
‘because of’ the eligibility – i.e. the need to care for a school-aged child, the pregnancy, disability etc. In this application, the FWC remarked that, “There is …no certainty as to what a move to Queensland might entail, or what childcare arrangements might be required, or even when these pieces of the puzzle would start to come together. The request could not have been made ‘because of’ circumstances that did not yet exist.”
Re Powernet Constructions Pty Ltd [2026] FWCA 354
This case involved a successful variation to an Enterprise Agreement (EA) in the FWC.
Powernet Constructions Pty Ltd (‘Powernet’) attempted to vary the EA, following its recent takeover by another company. Employees were advised that the acquisition would seek to have their conditions standardised in line with other electrical work companies in that industry. The variation to the EA tried to put that representation into effect.
Powernet contended that the variation was the most appropriate and proportionate course, as supported by employees and the ETU. It also circumvented the need for new bargaining which could cause delay, uncertainty and potential for disruption during this period of change.
Commissioner Perica described the proposed variation as “a complete metamorphosis of the terms of the Agreement. …empty[ing] the Agreement of content and to pour new content into it.” Thus, the FWC had to confirm if this scope or means of immense variation was permissible.
Commissioner Perica, in considering the Fair Work Act’s objectives to afford a “simple, flexible and fair framework that enables collective bargaining in good faith” found that completely changing the text of an agreement could still be a variation.”
Accordingly, the application to vary the EA was approved.
Key Takeaways:
In instances of a change of business with an existing EA, consider a variation application as an easier route to immediate change to workers’ terms of employments, rather than commencing the bargaining process from scratch. Ensure, however, that the requisite consultation procedures are followed.
The FWC was likely so agreeable to the variation proposal because Commissioner Perica sought particulars about the process of consultation with the employees and confirmed there was adequate understanding. For example, Powernet established that employees were:
- provided with access and time to review the proposed varied EA and supporting explanatory materials;
- shown a comparison of their rights with the current and new version of the EA; and
- encouraged to ask questions, raise concerns and seek clarity;
- unanimously in agreement with the proposed EA, upon voting on the proposal.
KEY DATES & CHANGES
18 February 2026: Regulation of Digital Work Systems
The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) came into effect on 18 February 2026 which seeks to regulate the use of digital work systems (‘DWS’). The set meaning of a DWS is, “an algorithm, artificial intelligence, automation or online platform.” Employers and businesses are now required to consider the health and safety risks of their workers when it comes to allocation of work or use of a DWS. For example, whether the operation of a DWS creates excessive workloads, unreasonable metrics to assess performance or unreasonable monitoring/ surveillance of worker.
Wage Increases:
1 March 2026, first tranche of wage increases for all Children’s Services Employees classifications under the
Children’s Services Award 2010;
1 April 2026, first tranche of wage increases for dental assistants and pathology collectors under the Health
Professionals and Support Services Award 2020
HOW MV CAN HELP
As Canberra’s trusted employment and workplace relations lawyers, we have built a reputation for our passion, commitment and collaborative approach to your employment and workplace relations needs.
We can help you with:
- Preparing or Defending a request for flexible working arrangements;
- Advising and assisting with a variation to an enterprise bargaining agreement;
- Updating your workplace policies to include reference to regulation of Digital Work Systems or workplace surveillance;
- Considering if changes to your staff wages are required and how to implement this;
- And much more…
Authors: Amy Sydney & Laura Wood
Ph: (02) 6279 4444
Email: info@mvlaw.com.au
This newsletter does not constitute legal advice, and we encourage you to reach out for us to provide customised information for your circumstances.