In Collins v Intersystems Australia, the Fair Work Commission (FWC) dismissed an employee’s application challenging his employer’s refusal of his request for a flexible working arrangement. The decision provides timely guidance for employers navigating post-pandemic remote work arrangements, particularly those requiring employees to return to the office after long periods of working remotely.
Background
Mr Collins, a Principal Technical Specialist with Intersystems Australia, lodged an application with the FWC under the Fair Work Act 2009 (FW Act) after his request to work from home two days per week was denied.
The request followed the employer’s decision to end its hybrid working model and require full-time office attendance for all departments, except one.
Mr Collins cited his parental responsibilities for two school-aged children and a desire for work-life balance as the basis of his request.
Mr Collins was offered the option to work from home one day per week and additional alternative arrangements, including shorter or split shifts to assist with school drop-off and pick-up. He did not accept the alternatives and did not provide further information about why he needed to work two days from home to satisfy his caring responsibilities.
The employer argued that full-time office attendance was essential for cross-team collaboration, mentoring, and improving customer service outcomes following a 28% drop in customer satisfaction reported in a 2024 survey.
Law
Section 65 of the FW Act allows an employee with 12 months’ continuous service to request flexible working arrangements if:
- the employee is pregnant;
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer (within the meaning of the Carer Recognition Act 2010);
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing family and domestic violence;
- the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing family and domestic violence.
Employees must make their request in writing, provide details of the flexible working arrangements sought, and provide the reason/s for the request.
FWC’s Decision
At hearing, Mr Collins conceded he had “no caring obligations during core business hours” and that he and his wife, who also worked for Intersystems, coordinated their schedules to manage childcare together.
Commenting broadly on the requirements of s 65 of the FW Act, the FWC held that:
- “[…] the employee’s desire for a change in working arrangements must be because of the relevant circumstance in section 65(1A) and the request must relate to the relevant circumstance”; and
- “[…] the request must include the details of the change sought and the reasons for the change […] to identify the relevant circumstance in section 65(1A) and explain how the proposed changed working arrangements relates to that circumstance”.
The FWC dismissed the application because Mr Collins’ request was not validly made under section 65 of the FW Act. The FWC held that:
- the request failed to establish a “sufficient nexus” between the proposed working arrangement and the employee’s parental responsibilities, as required under section 65(1A); and
- Mr Collins’ desire to continue his post-COVID remote work pattern was insufficient to meet the statutory threshold.
The FWC found it lacked jurisdiction to arbitrate the dispute and dismissed Mr Collins’ application.
Reasonable Business Grounds
The FWC also indicated that, even if the request had been validly made, the employer’s refusal would have been upheld on “reasonable business grounds”, including:
- the operational need for in-office collaboration to resolve customer issues quickly;
- survey data indicating a need to improve service delivery; and
- practical alternative arrangements already offered to the employee.
While these comments are not binding on the FWC or other courts/tribunals because they were not determinative of the dispute – they provide guidance to employers required to respond to employees’ requests for flexible working arrangements.
Key Takeaways
The FWC’s decision reinforces several key points:
- Flexible work requests must clearly link the proposed change to the “employee’s personal circumstances” resulting in the need for the flexible working arrangements;
- Employers should genuinely engage with such requests, seek further information if required, and consider offering alternative arrangements; and
- A well-supported business case for refusal, based on an employer’s operational needs and fairness to both the employee and employer, is likely to be sufficient to refuse an employee’s request, even if an employee has longstanding remote work arrangements.
Employers are encouraged to seek legal advice when managing requests for flexible work arrangements to ensure compliance with the FW Act.
For more information or assistance with workplace arrangements, please contact the Employment Law team at Mellor Olsson Lawyers.