The Fair Work Commission’s recent decision in favour of a Westpac employee highlights significant risks for employers managing flexible work arrangements and return-to-office policies.
The Case
A Westpac worker successfully challenged the bank’s refusal to allow her to work permanently from home. The employee, who had worked remotely for several years whilst caring for her twin six-year-olds, requested to continue remote work or attend a local Bowral branch instead of the Kogarah corporate office. Westpac refused, citing its hybrid work policy requiring two days per week in the office.
Critical Employer Failures
The FWC identified serious procedural breaches by Westpac:
- Failed to respond within the statutory 21-day timeframe
- Provided no reasons with the initial refusal
- Did not genuinely discuss or attempt to reach agreement before refusing
- Failed to consider consequences of refusal for the employee
- Offered only cursory references to company policy rather than specific business grounds
Business Grounds Rejected
Westpac argued that in-office attendance fostered collaboration and customer focus through team huddles and call boards. The Commissioner found these justifications too generalised and insufficient, noting the employee had worked remotely successfully for years with excellent performance.
The ‘Trap’ for Employers
Legal experts warn this decision creates a significant risk: allowing employees to work from home temporarily—even as a goodwill gesture—can provide evidence that permanent arrangements are viable. If performance metrics are met remotely, employers may struggle to refuse subsequent formal requests.
Key Takeaways for Employers
- Document everything: Clearly articulate specific, role-based business grounds for any refusal
- Follow procedures meticulously: Comply with all statutory requirements under s.65A of the Fair Work Act
- Engage meaningfully: Genuinely discuss and attempt to reach agreement before refusing
- Consider individual circumstances: Generic policy references are insufficient; assess each request individually
- Be cautious with interim arrangements: Temporary remote work periods may undermine future refusal attempts
The decision confirms that company policies and even enterprise agreements cannot override National Employment Standards regarding flexible work rights. Employers must balance operational needs with individual circumstances, ensuring procedural compliance and substantive business justifications for any refusal.
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