Application for a dispute about requests for flexible work arrangements
Employees do not have open-ended entitlements to request changes to their working conditions. Instead, they must prove that any request arises out of genuine necessity, as opposed to mere convenience.
The case of Paul Collins v Intersystems Australia Pty Ltd (C2025/2239) [2025] FWC 1976 provides helpful guidance for employers navigating this terrain.
The facts
Since 19 December 2005, Paul Collins was a full-time employee of InterSystems Australia Pty Ltd (InterSystems). Following the COVID-19 pandemic, InterSystems allowed its employees to work remotely two days per week.
On 21 November 2024, InterSystems revised its policy such that all staff (excluding the Development Department) had to return to working from the office five days each week.
To help meet his parental responsibilities for his school-aged children, Mr. Collins submitted a request to maintain his existing remote working arrangements of two days at home each week.
Rejecting the request, InterSystems offered Mr. Collins the option to work from home one day per week. Mr. Collins did not accept the alternative, noting that InterSystems’ policy was inconsistent across its workforce. Following further unsuccessful negotiations, Mr. Collins took the matter to the Fair Work Commission for resolution.
The legislation
The Fair Work Act 2009 (FW Act) entitles certain employees to request flexible working arrangements. For example, if the employee is pregnant, or the employee is a parent, or has responsibility for the care, of a child who is of school age or younger, and more).
Employers can refuse a request provided they have discussed the request with the employee and genuinely tried to reach an agreement about making changes to the employee’s working arrangements to accommodate their individual circumstances.
Decision
Dismissing Mr. Collin’s application, DP Dean was satisfied that Mr. Collins had failed to meet the requisite threshold – he was unable to articulate a sufficient nexus between his parental responsibilities and the request to work from home.
DP Dean determined that an employee must establish a clear and sufficient nexus between their request and individual circumstances under the FW Act. It is not enough for an employee to simply request a change to their working conditions to suit their own preferences. Instead, they must establish how their circumstances align with the legislative criteria. In Mr Collin’s case, his evidence did not demonstrate that he needed to work from home two days per week to meet his parental responsibilities given he had no specific duties during his usual working hours of 9am to 5pm.
Key takeaways for employers when considering flexible working arrangement requests
When considering a request, be sure to check that the employee has established:
1. that their request:
a. is based on relevant circumstances under the FW Act (i.e. pregnancy); and
b. is made regarding that circumstance; and
c. outlines details of and reasons for the desired change,
2. those reasons identify the relevant circumstances and explain how the proposed working arrangements relate to those circumstances.
If opting to refuse a request, employers must base any refusals on reasonable business grounds (i.e. the request would be too costly for the business to accommodate or it would negatively affect other employees’ working arrangements).
Written & Prepared by: Caroline Mostafa, Philip Brewin & Billy Branagan
