Bank argued granting request would undermine its hybrid work policy requiring two days in office
The Fair Work Commission (FWC) recently dealt with an application about a request for flexible working arrangements under the Fair Work Act.
On 17 January 2025, a Westpac Banking Corporation worker requested a flexible working arrangement to work remotely from her home in Wilton, south of Sydney, to care for and attend to school pick-ups and drop-offs for her two six-year-old children.
Westpac refused the request on 18 March 2025. The worker offered an alternative to work from a local Westpac branch at Bowral for 2 days per week rather than attend the closest corporate office at Kogarah.
That offer was rejected. The worker sought an order for her request to be granted.
Westpac maintained there was a genuine business need for the worker to attend the Kogarah corporate office at least 2 days per week.
Westpac said there were reasonable business grounds for refusing the request and that the orders proposed would be inconsistent with the Westpac Group Enterprise Agreement 2025.
The worker has been employed by Westpac since 2002 in the Mortgage Operations, Certifications and Settlements Team.
She worked part-time hours over five days per week from 8.00 am to 2.00 pm.
In 2021, the worker and her partner purchased their residence in Wilton, further away from the Kogarah corporate office than their previous residence.
Remote working history and policy changes
The worker's two children attended a private school approximately 25-30 minutes away from the family home in the opposite direction to Westpac's Kogarah office. School hours were between 7:40 am and 2:25 pm.
The worker was responsible for school pick-ups and drop-offs. Her partner was self-employed and had been working at various locations in Sydney and interstate since early 2025. He had limited capacity to assist with school duties given his work commitments.
The worker had a history of working remotely from home. From early 2017, she was only required to attend a corporate office one day per week. In mid-2018, she worked remotely full-time until maternity leave in February 2019.
After returning in April 2021, she continued working remotely full-time until August 2022, when she was required to attend the corporate office one day per month.
Westpac had a Hybrid Working Model policy, which required employees to attend a corporate office 2 days each week.
The closest corporate offices to the worker's residence were Kogarah and Parramatta. It took approximately 2 hours to travel from the children's school to either location.
In December 2024, the worker sought approval to work at the Bowral branch for 2 days per week instead of attending the corporate office.
An acting senior operations manager approved this as a short-term 'olive branch' to assist with the worker's transition to in-office work.
However, in January 2025, a senior operations manager returned from leave and reversed the decision.
The worker made a formal flexible working arrangement request on 17 January 2025. On 18 March 2025 a team leader conveyed that the senior operations manager had refused the request with no reasons provided.
The worker asked for the reasons the same day. On 19 March 2025, the senior operations manager sent an email referring to Westpac's remote working policy and said that 'working from home is no substitution for childcare' and 'your arrangements for working remotely may change at any time at Westpac's discretion'.
Procedural failures identified
The FWC examined the response to the request. Westpac conceded it did not provide a response within 21 days as required by statute. No reasons were provided with the initial written refusal on 18 March 2025.
The reasons ultimately provided were cursory at best, with brief reference to Westpac's policy.
The Commissioner stated: "There is also little doubt on the evidence that in dealing with the [worker's] FWA request, Westpac did not engage with a number of the mandatory requirements set out in s.65A of the Act. In particular, [the senior operations manager] did not discuss the request with the [worker] or genuinely try to reach an agreement with the [worker] about making changes to the [worker's] working arrangements. Nor was there any evidence to suggest that [the senior operations manager] had regard to the consequences of the refusal for the [worker]."
The Commissioner stated there was no attempt to describe the particular business grounds for the refusal or how those grounds applied to the request.
The response did not set out changes to working arrangements that would accommodate the worker's circumstances that Westpac would be willing to make. The worker submitted that the shortcomings were fatal to Westpac's right to refuse the request.
The Commissioner stated: "I accept the [worker's] submission that the evidence shows that the refusal of the request preceded any dialogue between the parties about the request, and it was only after the [worker] escalated the matter that Westpac began to discuss potential compromises to the request."
The Commissioner stated that consultation and a genuine but unsuccessful attempt to reach an agreement should occur after the request and before the refusal. Here, the refusal came on 18 March 2025, and discussions occurred afterward.
The Commissioner stated: "I conclude that the respondent did not meet the requirements of s.65A(3)(a), (b) and (c). These failures should be taken into account in the exercise of the Commission's discretion under s.65C. Consideration also needs to be given to the issue of whether there were reasonable business grounds for the refusal."
Business grounds rejected
The FWC examined reasonable business grounds. Westpac relied on provisions referring to the requested arrangements being likely to result in a significant loss in efficiency and productivity or having a significant negative impact on customer service.
Westpac stressed the importance of its policy as a measured approach that provided for a mixture of in-person and remote work and enabled it to effectively manage this issue amongst its very large workforce.
There was evidence about the benefits of attendance in fostering collaboration in the worker's immediate team and meaningful engagement with stakeholders.
An executive manager gave evidence about methods used by Westpac to help team members retain a customer focus, including team 'huddles' and activities, training sessions and the use of 'call boards' at corporate premises, which conveyed key messages to staff and which were not accessible to employees working from home.
The worker maintained there were no reasonable business grounds for refusing the request. The worker said access to on-site cheque printing facilities was not critical to the worker's essential responsibilities.
The worker submitted that team collaboration was unlikely to be adversely affected, as the worker's team was constructed such that face-to-face contact was not an ordinary part of the job.
The worker said her team was a remote and flexible team that clearly functioned well without ongoing in-person attendance.
The Commissioner stated: "The [worker] properly conceded that there were some benefits that would attach to in-person attendance and face-to-face interaction. However, the evidence as to the benefits was generalised and to the extent that specific examples were relied upon these were in my view, insufficient to establish reasonable business grounds."
The Commissioner stated: "Further, there is no question that Ms Chandler's work can be performed completely remotely. She has been working remotely for a number of years and is doing so very successfully. The evidence confirms that both [the worker] and her team have performed at a very high level. Deadlines have been met or exceeded."
The Commissioner stated: "Having considered the evidence and submissions and noting that the list of reasonable business grounds in s.65C(5) is non-exhaustive, I have come to the view that the evidence here does not establish that there were reasonable business grounds for the refusal."
Fairness and order granted
The FWC examined fairness between the parties. Westpac argued it would be unfair to make the order sought because it would relieve the worker of a requirement that applied to all other Westpac employees and would undermine Westpac's ability to insist on compliance with those requirements by other employees.
Westpac stated that the current circumstances arose from the worker's life choices and preferences. Westpac contended the worker's partner was capable of playing a larger role in the care of the children.
The worker submitted that Westpac would suffer no real detriment if the application succeeded. The worker stated that the imposition on Westpac was limited to not having face-to-face interaction in circumstances where the overwhelming majority of the team's interaction occurred online.
The Commissioner stated: "I do not think that the evidence supports the view that the [worker's] partner could realistically play a greater role in the arrangements for before and after school care."
When the partner worked in the Sydney area, he left home at 4.30 am and did not return until 6 or 6.30 pm.
The worker's partner presently worked 6 days per week, including Sundays.
The Commissioner stated: "On balance, having considered the evidence in its totality, I am of the view that fairness considerations weigh in favour of the making of an order."
The FWC examined the inconsistency with the Westpac Agreement. Westpac submitted an order would be inconsistent with the Westpac Agreement.
The worker submitted the right to request a flexible working arrangement was a minimum employee entitlement under the National Employment Standards and that a term of an enterprise agreement could not exclude a provision of the National Employment Standards.
After the hearing concluded, the Full Bench of the Commission handed down its decision in another matter. Both parties filed brief written submissions as to the significance of that decision.
The Commissioner examined that Full Bench decision and stated: "In my view the respondent's argument that s.65C(2A) restricts the capacity of the Commission to make an order other than one which is consistent with the terms of clause 19 of the Westpac Agreement, that is, an order which requires, at least, a mix of working time at and away from the office and being available to attend the office as required, must be rejected."
The Commissioner stated: "I do not consider that an order that the respondent grants the FWA request under s.65C(1)(f)(i) would be inconsistent with the terms of the Westpac Agreement for the purposes of s.65C(2A)(b). I am satisfied that there is no reasonable prospect of the dispute being resolved without the making of an order under s.65C(1)(f)(i). I propose to make an order in resolution of the dispute."
