Disputes over Flexible Working Arrangements producing mixed bag of results

As more businesses scale-back work-from-home (WFH) initiatives triggered by the COVID-19 pandemic and more employees find themselves being required to attend the workplace regularly, requests for flexible working arrangements have become a popular channel for employees seeking to maintain remote work opportunities, with the Fair Work Commission (FWC) routinely called upon to intervene in disputes.

‘Preference’ for WFH insufficient

In mid-July, Deputy President Dean dismissed an employee’s application disputing his employer’s refusal of his request for flexible working arrangements, finding the Tech Specialist was not eligible to raise the request in the first instance and that the employer’s grounds for refusal would have been reasonable even if the request had been validly made.

The Sydney-based tech support company had adopted a hybrid model of work during COVID, with employees in the Tech Specialist’s department working remotely two days per week. Following a survey of clients in 2024, the employer made the decision to direct all staff (except for one department) to attend the workplace five days per week in the interest of improving customer service outcomes. The retraction of the hybrid working model was flagged to commenced from 1 February 2025, with employees being given notice in November 2024. The Tech Specialist raised his request for flexible working arrangements on 23 January, seeking to maintain the hybrid model of working two days per week from home, citing “caring responsibility for his school-aged children and the need for work-life balance” as grounds for his request. The employer refused his request on 14 February but offered for the Tech Specialist to continue working remotely one day per week, which he rejected.

In bringing his dispute before the Commission, the employee argued that he was parent of two school-aged children (aged 8 and 10) and shared caring responsibilities with his wife. He also asserted that he had “consistently met all performance expectations and did not receive any negative feedback regarding his performance, availability, or communication” while working on the hybrid work model and expressed that he should be afforded the same flexibility as the employees (in a different department) who were permitted to continue working remotely.

Although it was not in dispute that the Tech Specialist was a parent of school-aged children and that he shared caring responsibilities with his wife, Deputy President Dean found the employee failed to establish “the requisite nexus” between “his responsibilities as a parent of school-aged children, and the change in working arrangements he seeks”. She observed the employee’s request, “merely expressed a preference to continue with a preexisting pattern of remote work and failed to articulate how working from home two days per week specifically supported or related to his parental responsibilities”.

Under cross-examination, the Tech Specialist conceded “that he has no specific caring duties between the core working hours of 9:00 am and 5:00 pm, and that he and his wife are able to manage school drop-offs and pick-ups through existing flexibility including adjusted start and finish times”.

Deputy President Dean found that the employer made “genuine attempts” to engage with the employee’s request, “including offering alternative arrangements such as working shorter hours on specific days”, but the Tech Specialist “gave no explanation as to why these alternatives were unsuitable”.

In dismissing the Tech Specialist’s application on the basis he had not validly made his request, the Deputy President also concluded, “for completeness”, that the employer had reasonable business grounds to refuse the request, having regard for “the nature of the [employer’s] operations, its organisational needs, the practical alternatives offered to the [employee] and fairness between the [employee] and the [employer]”. 

Collins v Intersystems Australia Pty Ltd [2025] FWC 1976 (14 July 2025)

Risks to child with illness override employer’s back-to-office directive

Less than a week after Deputy President Dean dispensed with the above application, Commissioner Sloan ordered an administrative employee was entitled to continue her full-time remote working arrangements, finding the employee’s desire to protect her child with cystic fibrosis prevailed over the employer’s preference that she report to the workplace at least three days per week. 

The Retail Promotions Coordinator (RPC) had only ever worked remotely for the distribution business since she commenced full-time employment in mid-2020, at the peak of the COVID-19 pandemic. In late-2024, the employer issued a blanket direction that certain employees (the RPC included) would be required to report to the office at least three days per week from mid-October. The RPC sought an exemption from the direction, by way of a request for flexible working arrangements, which would allow her to continue working entirely remotely on the basis she has a teenage daughter with cystic fibrosis and “wished to minimise the risks of being exposed to pathogens in the workplace and bringing those into her household, endangering her daughter”. The employer refused the RPC’s request, instead offering to modify the directive to require that she only attend the office two days per week and “at other times as directed”, but this was rejected by the RPC.

Despite the employer’s objections, Commissioner Sloan was satisfied the employee had validly made the request, finding that the employee was a parent of a school-aged child (which was not in dispute) and that her request to continue working remotely would assist in minimising the risk of bringing illness into her household. Although the Commissioner was not satisfied that the employee’s request was “based on medical necessity” he was persuaded that there were “compelling medical reasons” for her request, concluding she had made the request “because of” her circumstances as a parent. The Commissioner further observed that the employer had been distracted by challenging the credibility of the employee’s request and therefore failed to properly engage with the RPC’s case.

In turning to consider whether the employer had established reasonable business grounds for refusing the employee’s request, Commissioner Sloan assessed that the company sought to rely on principles advanced by a South Australian employer in a 2024 dispute (see our related article), while failing to establish “an evidentiary basis” for their claims that the return to the office would “foster an environment of collaborative working”; improve working relationships; increase productivity and accountability; and/or “improve the health and wellbeing of employees by promoting connections between them”. Instead, Commissioner Sloan observed:

“I have no evidence on which to base an opinion that there are benefits to be derived – for [the employer], [the RPC] and other employees – from in-person collaboration between work colleagues in the particular circumstances of this case. Given the weight that [the employer] placed on those asserted benefits, it needed to do more than ask me, in effect, to take judicial notice of them.”

Having found that the employee’s request was validly made and that the employer had failed to establish reasonable business grounds for refusing the request, Commissioner Sloan determined it was appropriate to use his discretion to make an order. In doing so, the Commissioner acknowledged the rigidity adopted by both parties over the course of proceedings, commenting, “I am well and truly satisfied that this dispute will not resolve in the absence of an order”.

Ultimately Commissioner Sloan ordered the employer grant the RPC’s request that she be exempted from the return-to-office direction but added:

“While I will make an order to that effect, I urge both parties to adopt a constructive and pragmatic approach to their ongoing relationship. As the evidence made clear, [the employee] has elected to attend work-related events from time to time and otherwise takes part in activities outside the home. There may be occasions when [the employer] might have a legitimate reason for her to attend the workplace, or work-related events, other than as a regular attendance under the [return-to-office direction]. I would hope that such situations would be approached with professionalism and common-sense by both parties, and with a complete absence of the dogmatism (from both sides) which occasionally reared its head during the course of these proceedings.”

Louise v Metcash Trading Ltd [2025] FWC 2090 (18 July 2025)