Requests for Flexible Work Arrangements – Higher threshold for Employees

In Paul Collins v Intersystems Australia Pty Ltd [2025] FWC 1976 FWC made it clear that employees who make requests for flexible work arrangements (s 65 FW Act) need to demonstrate a clear and substantiated connection between their circumstances and the requested flexibility and the specific reason for the requested change.

In this case, following the employer’s requirement that all employees work 5 days from the office to meet customer service delivery objectives, the employee with shared parental responsibilities for 2 school aged children (8 and 10), requested to WFH 2 days a week in his technical support role. The employer counter-offered WFH 1 day per week but the employee refused arguing he hadn’t received any negative feedback whilst he had been working a temporary 2 day WFH arrangement previously.

FWC found the employee failed to provide sufficient evidence of a direct connection between his parental responsibilities (of which there were no specific caring duties between core working hours but involved shared pick up/ drop offs) and the 2 day WFH arrangement he sought. Further, it found the employer had reasonable business grounds based on customer feedback that customer service had declined 28% during a period where WFH arrangements were occurring.

Our Take

This case is consistent with a recent trend reflecting the higher threshold for employees to establish the need for the flexibility sought and good news for employers who can feel more confident in genuinely ‘testing’ flexible work arrangements where they are not meeting operational requirements.

Recently we reported on Fogo, Boeing Aerostructures Australia Pty Limited [2024] FWC 3037 whether a 61-year-old engineer failed to establish a connection between his age and his request to work from home two days a week and a transition to retirement.

Action Items

1. During consultation, scrutinise why operationally the employer needs to ‘push back’ on a request for flexible arrangements.

2. Carefully consider evidence of the link between the right to request the arrangements and the arrangement sought.

3. Seek out and then genuinely consider the consequences on the employee of any refusal to accept the request for flexibility.

4. Genuinely consider and consult with the employee about alternative arrangements that might be an acceptable compromise and attempt to reach agreement.

5. Document the process and content of what has been considered above.

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