s.65B - Application for a dispute about requests for flexible work arrangements

Application to deal with a dispute about the right to request for flexible working arrangements.

• [1] Mr Paul Collins (Applicant) has made an application pursuant to s.65B of the Fair Work Act 2009 in relation to a dispute concerning the refusal of a request for a flexible work arrangement by his employer, Intersystems Australia Pty Ltd (Respondent).
• [2] The Applicant seeks an order from the Commission permitting him to work from home two days a week.

• [3] The application was the subject of conciliation held on 3 April 2025. However, the dispute remained unresolved and the Applicant requested that the matter proceed to arbitration under section 65C of the Act.

• [4] A hearing was conducted on 11 June 2025. At the hearing, the Applicant was self-represented and the Respondent was represented with permission by Ms V Bulut, of Counsel.

• [5] For the reasons set out below, I have determined that that the Applicant's request was not validly made under s.65 of the Act and the Commission lacks jurisdiction to deal with the dispute.

• [6] The Respondent is a global software company that operates an online record system in Australia known as TrakCare. This system is utilised by healthcare providers to facilitate the sharing of health information between facilities and organisations.

• [7] The Applicant commenced full-time employment with the Respondent on 19 December 2005 as a Principle Technical Specialist. He is one of six members of the Backline Support Team based in the Sydney office which provides escalated technical support to the Front Line TrakCare support team in resolving complex issues related to the operation of the product.
• [8] The Respondent adopted a hybrid working model following the COVID-19 pandemic, allowing employees to work remotely two days per week. Under this arrangement, the Applicant has been working from home on Wednesdays and Thursdays.

• [9] On 21 November 2024, the Respondent issued a memorandum advising that, effective 1 February 2025, all staff (excluding those in Department 55-Development) would be required to return to the office five days per week. According to the Respondent, the decision to depart from the hybrid working model was made in response to the results of a 2024 survey of TrakCare users. The Respondent considered that increasing in-office attendance to five days per week would be a strategic measure toward enhancing customer service delivery.

• [10] On 23 January 2025, the Applicant submitted a formal request for a flexible working arrangement to continue working from home two days per week, citing caring responsibility for his school-aged children and the need for work-life balance as grounds for the application.

• [11] By letter of 14 February 2025, the Respondent informed the Applicant that his request could not be accommodated. However, the Respondent offered an alternative flexibility permitting the Applicant to work from home one day per week. The letter requested that the Applicant confirm his acceptance by signing and returning the letter within seven days.

• [12] The Applicant did not accept the proposed alternative arrangement. Further discussions subsequently took place between the Applicant and the Respondent's Human Resources personnel. During these discussions, the Applicant disputed the Respondent's claim that it had reasonable business grounds to reject his request and raised issues regarding other members of the Development Team who were offered the flexibility to work from home.

• [13] Having failed to reach an agreement with the Respondent, the Application brought the present application.

• [14] Section 65 of the Act provides:

Employee may request change in working arrangements

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(aa) the employee is pregnant;

(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;

(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010);

(c) the employee has a disability;

(d) the employee is 55 or older;

(e) the employee is experiencing family and domestic violence;

(f) 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.

(1B) To avoid doubt, and without limiting subsection (1), an employee who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part‑time to assist the employee to care for the child.

(2) The employee is not entitled to make the request unless:

(a) for an employee other than a casual employee - the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

(b) for a casual employee - the employee:

(i) is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

(ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

(2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment converted under Division 4A of Part 2‑2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.

(a) be in writing; and

(b) set out details of the change sought and of the reasons for the change.

• [15] Section 65A of the Act sets out the requirements imposed on employers in responding to a request for flexible working arrangements. It provides:

65A Responding to requests for flexible working arrangements

(1) If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.

(a) state that the employer grants the request; or

(b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee's working arrangements that differs from that set out in the request - set out the agreed change; or

(c) subject to subsection (3) - state that the employer refuses the request and include the matters required by subsection (6).

(a) the employer has:

(i) discussed the request with the employee; and

(ii) genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements to accommodate the circumstances mentioned in subsection (1); and

(b) the employer and the employee have not reached such an agreement; and

(c) the employer has had regard to the consequences of the refusal for the employee; and

(d) the refusal is on reasonable business grounds.

Note: An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).

(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee's working arrangements if the employer would have reasonable business grounds for refusing a request for the change.

Reasonable business grounds for refusing requests

(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

(a) that the new working arrangements requested would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;

(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.

Note: specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

(6) If the employer refuses the request, the written response under subsection (1) must:

(a) include details of the reasons for the refusal; and

(b) without limiting paragraph (a) of this subsection:

(i) set out the employer's particular business grounds for refusing the request; and

(ii) explain how those grounds apply to the request; and

(i) set out the changes (other than the requested change) in the employee's working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or

(ii) state that there are no such changes; and

(7) This section does not affect, and is not affected by, the meaning of the expression 'genuinely trying to reach an agreement', or any variant of the expression, as used elsewhere in this Act.

• [16] Sections 65B and 65C set out the framework for the Commission to deal with such disputes by arbitration and outline the orders that may be made.

• [17] In Quirke v BSR Australia Ltd (Quirke)[1], the Full Bench of the Commission set out the requirements for a valid request under s.65 of the Act. The Commission lacks jurisdiction under s 65B to deal with a dispute where the request is not validly made.

• [18] Two of those requirements are relevant to this case.

• [19] First, the employee's desire for a change in working arrangements must be because of the relevant circumstance in s.65(1A) and the request must relate to the relevant circumstance.[2] This reflects the requirement for a clear 'nexus' between the request and the relevant circumstance.

• [20] Second, that the request must include the details of the change sought and the reasons for the change (s 65(3)(b)). The requirement to set out the 'reasons for the change' is to be understood as connected with the requirements for a valid request in s 65(1), such that the required reasons would need to identify the relevant circumstance in s 65(1A) and explain how the proposed changed working arrangements relates to that circumstance.

• [21] The key issues arising for determination in this case are:

1. Whether the Applicant's request for the flexible working arrangement was validly made; and

1. Whether the Respondent's refusal of the request was based on reasonable business grounds.

• [22] The Applicant is the parent of two school-aged children, aged 8 and 10, and shares caring responsibilities with his wife.

• [23] The Applicant submits that while working under the hybrid work arrangement he consistently met all performance expectations and did not receive any negative feedback regarding his performance, availability, or communication.

• [24] The Applicant disagrees with the Respondent's assertion that working five days a week in the office is essential for better customer service. He maintains that his remote work arrangement, in place for several years, did not adversely affect his productivity, availability, or overall performance. The Applicant asserts that he has demonstrated his ability to effectively fulfill his job duties while working remotely.

• [25] The Applicant further contends that the Respondent failed to give adequate individual consideration to his specific circumstances. Employees in the Development team are permitted to work remotely, and the Applicant believes he should be afforded the same flexibility. He asserts that there is no objective evidence to justify treating his role differently or to suggest that his remote working arrangement has negatively impacted his performance or ability to collaborate with others.

• [26] The Respondent submits that the Applicant's application should be dismissed because the Applicant has failed to establish a sufficient nexus between his request and the relevant circumstances prescribed by s 65(1)(b), and that its refusal was based on reasonable business grounds.

• [27] The Respondent relied on the witness evidence from the following individuals, which was not challenged by the Applicant:

• Enrique Portela (Senior Support Manager)
• Kate Ereifij (Human Resources Business Partner)
• Louise Calleja (Regional Human Resources Director)
• Luciano Brustia (Regional Managing Director, Asia-Pacific)

• [28] The Respondent contends that the Applicant failed to identify why his status as a parent of school-aged children required the specific flexibility he was seeking. In this regard, the Respondent noted that the Applicant merely wrote, 'would like to retain the pattern that I've been on since offices reopened after COVID', in response to the request to provide full details of matters to be considered. Further, at no point during subsequent discussions did the Applicant provide information about any caring duties or other responsibilities that he would miss if required to work from the office.

• [29] The Respondent submits that the Applicant's failure to articulate how his parental responsibilities are sufficiently connected to his request to work from home is fatal to his application.

• [30] The Respondent further submits that it has provided reasonable and sound business reasons for not approving the Applicant's request to work from home two full days per week.

• [31] It is the Respondent's position that employees are required to work from the office to facilitate the exchange of information and to support mentoring opportunities. The implementation of the software depends heavily on the collaboration of different departments. Having both frontline and backline support teams physically present in the office allows for faster decision making and more efficient resolution of customer issues. Specifically, a user survey revealed a 28% decline in customer satisfaction, prompting management to implement measures to improve customer efficiency, satisfaction, and attendance. In addition, in-person interactions benefit the organisation's culture.

• [32] The Respondent submits that the Commission must consider whether the Respondent has established reasonable business grounds for its decision and whether an order should be made, taking into account fairness between the employee and employer.

• [33] The Respondent emphasises that employees do not have an automatic right to any flexibility they request, nor do employers have an automatic right to refuse such requests. This situation requires a balanced approach, which manifests in three key areas. First, there should be a real focus on conciliation rather than arbitration on the parties to weigh up what is required to be done in order to accommodate both an employee and an employer given their particular circumstances. Second, the request must be made based on a sufficient nexus to the particular circumstances of the employee. Third, section 65C(2) requires the Commission to have regard to the fairness between the employer and the employee.

• [34] The Respondent highlights that a key distinction in this matter is that part of its refusal of the Applicant's request is based on the availability of alternative flexibility mechanisms that already accommodate his parental responsibilities.

• [35] The Respondent argues that the Applicant failed to explain why the alternative flexibility arrangements offered by the Respondent would be insufficient to meet his caring needs. During cross-examination, the Applicant acknowledged that the current arrangements work well for both him and his wife, as both are employed by the Respondent and benefit from flexible working hours. One of them can start early while the other starts later, allowing them to coordinate school drop-offs and pick-ups. The one who starts early also finishes early, enabling them to attend to after-school routines.

• [36] Furthermore, the Respondent made two alternative proposals to the Applicant: to work shorter hours on Wednesdays and Thursdays while compensating with additional hours on the other weekdays, and to work part of the day from home and part of the day from the office on those two days.

• [37] The Respondent argues that it remains unclear why the Applicant cannot attend the office between the hours of 9 am and 5 pm, particularly as he confirmed during cross-examination that he has no carer duties during this time. The flexibility offered by the Respondent would allow the Applicant to fully meet his parental responsibilities.

• [38] By failing to provide a sufficient explanation as to why the proposed alternatives are unsuitable for his caring requirements, the Applicant's request appears to be based on convenience rather than genuine necessity.

• [39] In response to the Applicant's reference to different flexible working arrangements for employees in the Development team, the Respondent submits that those employees perform different types of work, and therefore the arrangements afforded to them are not relevant to the present case.

• [40] On the evidence before me, I am not satisfied that the Applicant has established the requisite nexus between his stated circumstance namely, his responsibilities as a parent of school-aged children, and the change in working arrangements he seeks.

• [41] The Applicant's written request merely expressed a preference to continue with a pre-existing pattern of remote work and failed to articulate how working from home two days per week specifically supported or related to his parental responsibilities.

• [42] I accept that the Applicant is the parent of two school-aged children and shares parental responsibilities with his wife. However, the evidence does not demonstrate that he is required to work from home two days per week in order to meet those responsibilities. The Applicant conceded in cross examination 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.

• [43] In my view, the Respondent made genuine attempts to engage with the Applicant's request, including offering alternative arrangements such as working shorter hours on specific days. The Applicant gave no explanation as to why these alternatives were unsuitable.

• [44] For these reasons, I am not satisfied that the Applicant's request meets the requirements of s.65(1), (1A) and 3(b) of the Act. Accordingly, the request was not validly made, and the Commission lacks jurisdiction to deal with the dispute.

• [45] For completeness, even if the request was validly made, I am satisfied that the Respondent had reasonable business grounds to refuse the Applicant's request in accordance with s 65A(3) of the Act.

• [46] In reaching this conclusion, I have had regard to the nature of the Respondent's operations, its organisational needs, the practical alternatives offered to the Applicant and fairness between the Applicant and the Respondent.
• [47] The application is dismissed.

[1] [2023] FWCFB 209.

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