Westpac has been ordered by the Fair Work Commission to allow an employee to work from home permanently in a warning to other companies looking to implement return-to-office mandates.

The Fair Work Commission (FWC) earlier this week ruled that Westpac did not have reasonable grounds to refuse an employee’s request to work from home full-time.

It ordered that the employee, a mother of young twin daughters, be allowed to work from home permanently, and rejected Westpac’s arguments that having workers in the office boosts collaboration, improves productivity and allows for meaningful engagement.

The case has been hailed as another win for Australian workers wanting to maintain the workplace flexibility that many were granted for the first time during the COVID-19 pandemic, and a warning to companies looking to roll back some of this flexibility.

The FWC case

The employee, Karlene Chandler, is a part-time worker in Westpac’s ‘Mortgage Operations, Certifications and Settlements’ team, working 8am to 2pm every day except for Fridays.

She has worked for the bank since 2002.

In January this year, Chandler formally requested flexible working conditions under the Fair Work Act, asking to work remotely from her home in Wilton, south of Sydney, every day to allow her to care for and attend school pick-ups for her six-year-old twins.

Westpac’s corporate office in Kogarah is about a two-hour drive from the school that Chandler’s children attend, and the FWC heard that her husband’s work meant he was unable to assist.

Chandler’s WFH request was rejected by Westpac in mid-March, with the employee then offering to work from a closer local Westpac branch two days per week instead, but this was also rejected.

Chandler then launched the FWC action seeking an order that she be allowed to work from home five-days a week permanently.

In response, Westpac argued that there is a “genuine and reasonable business need” for Chandler to work from the corporate office at least two days per week, saying that this would lead to benefits including fostering collaboration with her immediate team and meaningful engagement with stakeholders and others.

Westpac accepted that it was not required for a worker to be in the office to perform their duties, but argued that 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”.

But Chandler said that the team she works in is “constructed in such a way that face-to-face contact was not an ordinary part of the job”, that it was already a remote and flexible team and it was functioning well without requiring in-office attendance.

Fair Work Commission deputy president Thomas Roberts said these reasons were “insufficient to establish reasonable business grounds”.

He found that Westpac team “huddles” could be and were being conducted on Microsoft Teams, that training sessions were available online and that most ad hoc social activities were held interstate.

Fair Work found the employee could do her job perfectly well working from home and conducting meetings via video conference calls. Photo: Shutterstock

Westpac also argued that Chandler working from home would limit her ability to mentor other staff, but the FWC found that she had not had to mentor anyone for at least three years, had “successfully trained” two employees remotely during the pandemic and informally assisted other workers via Teams.

Roberts found that there was “no question that Ms Chandler’s work can be performed completely remotely”.

Ultimately, the FWC found that while Westpac would obtain “some benefit” from Chandler attending the office some days per week, the consequences of not allowing her to work flexibly are “seriously prejudicial for the applicant and her family”.

The Commission ordered Westpac to grant Chandler the WFH arrangements that she originally requested in January – to work from home full-time.

Reactions to the decision

The Finance Sector Union welcomed the decision.

“The Commission’s decision is significant and paves the way for workers who have caring responsibilities just like Ms Chandler to secure work-from-home rights,” the union posted.

“This is a fantastic win that demonstrates employers need to take flexible working seriously and genuinely consider workers’ situations, if they want to retain talented staff in the industry.”

TBL Legal Solutions principal Jessica Carroll said that any company looking to bring its workers back to the office needed to be aware of the judgement.

“If your business is tightening up hybrid or remote working policies, take note: refusing flexibility isn’t unlawful per se, but doing it without proper reasoning or consultation absolutely can be,” Caroll said in a post on LinkedIn.

“Think before you hit decline.”

A number of companies, including many large tech firms, have attempted to get their workers back into the office following the pandemic, with many such as Amazon and NAB facing significant backlash from their workers for doing so.

Sydney Legal Consulting legal director Trish Ryan offered some advice for companies based on the decision.

“Follow the process: the Act clearly sets out how requests must be handled,” Ryan said.

“A hybrid work policy alone does not automatically justify refusal: you must be able to demonstrate reasonable business grounds if denying an individual request.”