Last week, the Fair Work Commission made a decision about flexible working that could be a “game changer” for Australian workers and companies looking to bring their staff back to the office.
The Fair Work Commission (FWC) ruling should be mandatory reading for any employer looking to introduce a return-to-office mandate.
It outlines the steps bosses must legally take when asked by an employee if they can work from home (WFH), known as a flexible working request.
What happened?
Westpac employee Karlene Chandler is the mother of two young twin daughters who asked to work from home to help with school drop-offs and pick-ups, with the school being a two-hour drive from the Westpac corporate office.
Westpac denied her request.
She took her case to FWC who ordered Westpac allow her to work from home permanently.
FWC slaps down Westpac
The Commission decided that Westpac did not have sufficient business reasons to deny Chandler working flexibly.
While acknowledging there would be “some benefit” from Chandler working in the office, the consequences of denying her flexible work were “seriously prejudicial for the applicant and her family”.
The FWC also found that Westpac had failed to meet its obligations under the Fair Work Act in responding to a flexible working request in a timely manner and to provide reasons for why the request was rejected.
What the ruling means for employers
Under industrial relations reforms driven by the Labor government, Australian employers have certain obligations under the Fair Work Act when an employee requests a flexible working arrangement.
These requests can be made by an employee who has worked continuously at the company for at least 12 months, are a parent or carer, have a disability, are 55 or older, pregnant, or are experiencing, or supporting someone experiencing, family and domestic violence.
The Fair Work Act states that an employer must give a written response to a flexible working arrangement request within 21 days and can only refuse it if there are “reasonable business grounds”.
‘Productivity’ and ‘collaboration’ are not genuine reasons
The Westpac FWC decision shows that the reasons to deny a working from home arrangement cannot be based around vague notions of productivity and collaboration but must be specific to the individual employee and their team.
It also shows that any return-to-office mandate must consider individual circumstances and ensure there are reasonable grounds to request this of workers that have a right under the Fair Work Act to request flexible working conditions.
The onus is on employers
“This game-changing work-from-home FWC ruling effectively moves the conversation beyond arbitrary office mandates and puts the onus on employers to provide genuine, reasonable business grounds for refusing flexibility, rather than relying on outdated views about face-to-face work,” HiBob Customer Success Manager Sabrina Scherm told Information Age.
“This directly confronts the rigid policies that disproportionately hinder women and carers, who often need flexibility the most.
“The result of inflexibility is typically a ‘presence bias’ where higher in-office attendance, which is more prevalent among men, translates into quicker promotions and increased visibility.”
Why is it the boss’s problem?
Quite simply: because it’s now the law.
Scherm said the ruling helps to move the conversation “beyond whether flexibility can work, to how businesses can best implement it”.
“For organisations, this shouldn’t be seen as a challenge, but as a proactive strategy for attracting and retaining top talent,” Scherm said.
“Building a culture based on trust, performance and mutual benefit is how we build the resilient, engaged and high-performing teams needed for the future.”
Know your rights and obligations
The FWC decision shows that Australian organisations need to be aware of their obligations under the Fair Work Act and follow these processes closely, Sydney Legal Consulting legal director Trish Ryan said.
“Follow the process: the Act clearly sets out how requests must be handled,” Ryan posted on LinkedIn.
“A hybrid work policy alone does not automatically justify refusal: you must be able to demonstrate reasonable business grounds if denying an individual request.”
It’s not just for mums
The FWC earlier this year also ruled in favour of working from home, ruling that a father should be allowed to have an additional day working from home to care for his young child, and rejecting his employer’s argument that this would create “distractions” and decrease his productivity.
The Productivity Commission this year found that an increase in working from home cannot be blamed for Australia’s ongoing productivity struggles.
