In a recent decision the Fair Work Commission has allowed an application by a Westpac employee to continue her flexible work arrangements, where the employee had a long history of successful flexible work.
The Facts
The employee was a part-time employee in Westpac’s Mortgage Operations Team. She worked 5 days per week usually starting at 8am and finishing at 2pm.
Although engaged on the basis that her role would be performed from the Kogarah corporate office, since August 2022 she had worked remotely full-time from home, attending the Kogarah corporate office once per month.
She and her partner had two young children who attended a private school approximately 25-30 minutes away from the family home in the opposite direction to Westpac’s Kogarah office. She was responsible for school pick-ups and drop-offs. Her partner had limited capacity to assist due to his work commitments.
Westpac’s Hybrid Working Model (Policy) provided for a mix of in-person and remote work and required employees to attend a corporate office 2 days each week. The closest corporate offices to the applicant’s residence were Kogarah and Parramatta and it took approximately 2 hours to travel from the applicant’s children’s school to either of those locations.
In December 2024 she sought approval to work at Westpac’s Bowral office for 2 days per week instead of attending the corporate office. This request was approved by an acting manager but was reversed when the incumbent manager returned from leave.
On 17 January 2025 she made a formal flexibility request under the Fair Work Act. Her manager responded on 18 March 2025 by an email, refusing the request. The response was after the 21-day period required by the Act and did not include Westpac’s reasons for the refusal.
Her manager emailed again on 19 March 2025, saying that ‘working from home is no substitution for childcare’ and ‘your arrangements for working remotely may change at any time at Westpac’s discretion’.
After further exchanges between the parties, in which alternative proposals were made, the employee applied to the Fair Work Commission for flexible work orders.
The Issues
Westpac contended that it had reasonable business grounds for refusing the request, including because:
- Its Policy was a measured approach that enabled it to effectively manage the issue of in-person and remote work amongst its very large workforce;
- Physical presence in the office assisted centralised operational processes such as document processing and more effective team communication and helped team members to retain a customer focus; and
- The ability of teams to work effectively with each other was much greater if there was a certain level of office attendance and face-to-face interaction.
The applicant disputed that Westpac had reasonable business grounds to refuse her request, including because:
- Access to on-site cheque printing facilities was not critical to her essential responsibilities;
- Team collaboration was unlikely to be adversely affected where face-to-face contact was not an ordinary part of the job;
- Her team was a remote and flexible team that functioned well without the ongoing in-person attendance, with members of the broader team located in Tasmania and South Australia; and
- Although there were some benefits of in-person attendance and face-to-face interaction, they were insufficient to establish reasonable business grounds.
Westpac also argued that it would be unfair to make the order sought because it would undermine its ability to insist on other employees complying with the Policy, and where the situation arose because of the employee’s choices about the location of her family home and the school for her children.
The employee argued that Westpac would suffer no real detriment where the overwhelming majority of the team’s interaction was online, with the team based in different states. In contrast she would have significant adverse financial consequences and would have to consider her future at Westpac if the application did not succeed.
The Decision
In allowing the employee’s application the Commissioner found that Westpac did not have reasonable grounds for its refusal, observing that:
- The employee had successfully worked remotely for a number of years. She and her team had performed at a very high level, with deadlines met or exceeded, and her individual performance ratings were high.
- Her existing remote working arrangements had neither resulted in a loss of productive efficiency nor negatively impacted customer service and it was unlikely that those would occur if the arrangements were continued.
The Commissioner was also satisfied that, on balance, it was fair to make the order in view of the prejudice to the applicant and her family if the order were not made.
Implications
The case is a reminder to employers that in deciding upon a flexible work application, the Fair Work Commission can take into account an employee’s history of successful flexible work, and can also have regard to the prejudice to the employee if a flexible work order is not made.
Employers are also reminded of their obligations to properly respond to flexible work requests made in accordance with the requirements of the Fair Work Act, including to first discuss it, to try to reach agreement, to consider the consequences to the employee of refusing it, to respond within 21 days, and to provide their business reasons for refusing a request.
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