What The Westpac Flexible Work Ruling Really Means For employers

Can employees really work from home if they want to? In a recent Fair Work case an employee won the right to work from home, but it turns out it's not that simple. It can only be requested under certain conditions and each case depends on the situation of the employ­ee and the employer's reasons.

A recent Fair Work Commission (FWC) decision has reignited debate about whether employees have the right to work from home, but experts say its implications may be narrower than headlines suggest.

In a recent FWC case involving a flexible work request from an employee at Westpac, Deputy President Roberts found in favour of the employee seeking flexible working arrangements to support school pick-up and drop-off duties.

The case has drawn significant attention, with some commentators claiming it prioritises employee preferences over organisational needs. But, the decision doesn't create a new right to work from home - rather, it reinforces the existing legal framework for flexible work requests under section 65 of the Fair Work Act.

What the case was really about

This wasn't a 'right to work from home' case. It was a dispute over a flexible work request made by an eligible employee - in this instance, a parent of school-aged children.

Under the FWA, only certain categories of employees can make such requests, including those who are pregnant, caring for children or family members, living with a disability, aged 55 or older, or experiencing family and domestic violence.

In this case, the employee's request to work from home was directly tied to her caring responsibilities - a critical link that strengthened her claim.

The Commission found that her need to pick up and drop off her two six-year-old children from school was clearly connected to her role as a parent, bringing her within the Act's protection.

By contrast, in a similar case from earlier this year, Deputy President Dean found that the applicant had failed to show this required nexus.

Although he was a parent of school-aged children, the flexible work arrangements he sought were not demonstrably necessary for him to fulfil those parental responsibilities.

This distinction is essential. For HR leaders, it underscores that the connection between the employee's circumstances and the flexibility requested must be explicit and well-documented.

The facts that tipped the balance

The outcome in Westpac's case was shaped by the particular facts. The employee had:

• Been working remotely since 2017 - long before COVID-19 made remote work commonplace.
• Consistently met performance expectations while working from home.
• Been part of a team that had demonstrated it could perform effectively online.
• Initially had her request approved before that decision was later reversed without clear rationale.

Taken together, these factors created a compelling picture of an employee whose performance and role suitability supported continued remote work.

However, the Commission also noted that not all of her circumstances worked in her favour.

For example, the employee had moved two hours from Westpac's Sydney offices - and enrolled her children in a school located 25 to 30 minutes in the opposite direction.

While Deputy President Roberts acknowledged this was partly a matter of personal choice, he found that Westpac had tolerated and facilitated remote work for several years and that withdrawing that arrangement now, without strong justification, was unreasonable.

For employers, the takeaway is that personal choices don't automatically justify remote work - but neither can long-standing flexible arrangements be reversed arbitrarily once expectations and precedents have been set.

Reasonable business grounds need to be specific

Westpac argued that its decision was based on "reasonable business grounds", including the need for collaboration, engagement, mentoring and alignment with operational processes.

However, these claims were found to be generalised and lacking in evidence. When examined closely, they didn't hold up against the employee's specific working context:

• The team "huddles" Westpac referred to were being conducted online via Microsoft Teams.
• Most team members were located in different states.
• There had been no new recruits requiring in-person mentoring since 2022, and the employee had previously mentored colleagues remotely with success.
• Training sessions were available online, further undermining the need for physical presence.

The Commission found that, in practice, the role was well-suited to remote work and that Westpac's reversal lacked a substantiated business rationale.

For HR teams, this highlights the importance of ensuring that "reasonable business grounds" are specific, evidence-based and demonstrably relevant to the role in question - rather than relying on broad cultural arguments about collaboration or connection.

What HR should take away

The Wespac decision doesn't establish a general right for employees to work from home. What it does make clear is that:

1. Flexibility requests must be assessed case by case. Employers should examine the individual circumstances, particularly when the request comes from an employee eligible under section 65 of the FWA.
2. A strong evidentiary basis is essential. Vague assertions about collaboration or culture will not suffice if challenged before the Commission.
3. Policies must allow discretion. A rigid or "one size fits all" approach to hybrid work will not meet the test of reasonableness where legitimate caring responsibilities or protected categories are involved.
   Past practice matters. Where long-term remote arrangements have been in place and are functioning effectively, employers must have clear, substantiated reasons to change them.

Striking the right balance

For HR practitioners, this case underscores a broader tension between organisational control and employee autonomy. It also serves as a timely reminder that flexible work policies should not only be strategically sound but also legally defensible.

Employers who can demonstrate fairness, flexibility and sound reasoning will be best placed to avoid disputes - and to defend their decisions if they arise.

In short, this case is not a green light for employees to demand remote work, nor a red light for employers to deny it.It's a call for nuance and a reminder that, in the era of hybrid work, success in flexible work disputes hinges on facts specific to the situation.

For further information please contact:

Michael Byrnes, Partner
Phone: + 61 2 9233 5544
Email: mjb@swaab.com.au

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.