Although working from home, 'remote work' or 'hybrid work' arrangements aren't new, these terms became employment buzzwords because of the COVID-19 pandemic. Since then, the Australian workforce has seen a significant shift in how and where work is performed. Many organisations have acknowledged the growing emphasis on work-life balance and responded by permanently adopting hybrid work arrangements.
A recent decision under the federal Fair Work regime highlights some important factors for NSW government sector agencies to consider when reviewing flexible work arrangements and evaluating requests for such arrangements.
Expectations around hybrid work
According to the Australian Bureau of Statistics (ABS), only 13% of working adults regularly worked from home prior to the pandemic. By August 2024, that number increased significantly to 36%. A recent research report published by the Australian HR Institute (AHRI), 'Hybrid and Flexible Working Practices in Australian Workplaces in 2025' found that the most popular hybrid arrangements for full time employees were as follows:
- 30% of employers required their full-time employees to attend the physical office at least three days per week
- 28% had no minimum requirement but 'encouraged' office attendance
- 16% required attendance at least two days per week.
As a result of this shift, employees are now increasingly interested in roles which offer remote or hybrid options. According to AHRI, many employers believe that these arrangements boost productivity, employee retention and diversity. However, hybrid work also poses challenges for employers, such as reduced employee collaboration, disconnection between colleagues and difficulties in monitoring performance.
Flexible work orders under the Fair Work Act
Section 65 of the Fair Work Act 2009 (Cth) (FW Act) allows eligible employees to request a flexible working arrangement. Such employees include those who have been permanently employed for at least 12 months, or casual employees who have regularly and systematically worked for an employer for at least 12 months.
Under section 65, employees can only request flexible work arrangements in circumstances where the employee is pregnant, is a parent or has parental responsibilities for school age children, is a carer, has a disability, is aged over 55, is experiencing family and domestic violence or is providing care to another household or family member experiencing domestic violence.
Employers can only refuse a request if they have reasonable business grounds and have taken certain steps, including:
- discussing the request with the employee
- genuinely trying to reach an agreement with the employee for alternative arrangements
- considering the consequences of the refusal for the employee.
Examples of reasonable business grounds for refusing a flexible work request could include the cost of the request, an inability to accommodate the request, operational impracticality, concerns about efficiency or the potential for negative impacts on work quality or customer service.
Recent Fair Work Commission decision shows 'preference' alone is not enough
The Fair Work Commission's recent decision in Collins v Intersystems Australia Pty Ltd [2025] FWC 1976 clarifies that an employee's 'preference' alone is not sufficient to justify a flexible work order under the FW Act.
In this case, the applicant, Mr Collins, was a long-time employee of global software company Intersystems Australia, which operates an online record system known as TrakCare. Mr Collins held the position of Principle Technical Specialist, a role that required him to provide escalated technical support to TrakCare's Front-Line support team when resolving complex operational issues.
During the COVID-19 pandemic, Intersystems implemented a hybrid working model, allowing Mr Collins to work from home on Wednesdays and Thursdays. However, in 2024, the company decided to require all staff to return to the office five days a week to improve reportedly poor user experiences.
In early 2025, Mr Collins made a formal request to continue working from home two days per week, citing his parental responsibilities for his two school-aged children and the need for work-life balance. Intersystems declined the request but offered for him to work from home one day per week. Mr Collins rejected the offer and subsequently brought an application under section 65 of the FW Act.
The key issues for determination in this case were:
- whether Mr Collins's request for the flexible working arrangement was validly made
- whether Intersystems's refusal was based on reasonable business grounds.
Decision
The Commission held that Mr Collins had not established the required connection between his circumstances (his responsibilities as a parent) and the need for the flexible arrangements he sought. Deputy President Dean instead noted that Mr Collins's request expressed a mere 'preference' to continue working from home two days per week.
Additionally, the Commission noted that even if Mr Collins's request had been validly made, Intersystems had established a reasonable business ground to reject the request.
How does Collins v Intersystems Australia Pty Ltd [2025] apply to the public sector?
The Collins decision provides a useful entry point for reassessing the relevant flexible work arrangements that may apply to a particular NSW Government sector agency.
When assessing the current approach to flexible work arrangements, key questions include:
- what are the reasons or grounds that give rise to an employee's entitlement to request a flexible work arrangement? Is there a particular reason that is needed and/or are there any other constraints for making the request?
- does the wording of the applicable policy, Award or Agreement create a responsibility on either party to establish certain circumstances or events for the purposes of progressing with the request?
- what can the agency consider and what are the boundaries when deciding whether to approve the request and/or put forward any alternative proposal?
Government sector agencies should carefully consider the role of employee preference when setting or reviewing policies related to flexible work arrangements and when having regard to other sources of entitlement. The Collins decision is a useful reminder that beyond broad principles, the actual wording used is critically important and can influence the answer to any one of the questions above.
If you have any questions regarding your employees' flexible work entitlements or about this article, please get in touch with us.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.
