Employers warned after Westpac work from home decision

Westpac’s loss at the Fair Work Commission over a staff member’s request to permanently work from home is a warning to bosses that they must be prepared to justify why they require certain workers to come into the office, experts say.

The warning comes after a Westpac worker, who moved hours away to be close to her children’s school, successfully challenged the bank’s office attendance policy

This week, the Fair Work Commission found in favour of an employee from Westpac’s mortgage operations team, who challenged the bank after it shot down her request to work from home and insisted she report to the office at least two days a week.

Karlene Chandler, who has worked for Westpac for more than 20 years, had moved with her family to Wilton, about 80km south of Sydney’s CBD, in 2021, to be closer to the private school her two six-year-old children attended.

The Fair Work Commission has forced Westpac to allow one of its employees to work from home permanently. Credit: James Alcock

Chandler wanted the working conditions so she could make school drop-offs for her children, noting that it took roughly two hours to travel from the school to a Westpac office in either Kogarah or Parramatta.

She had been approved for flexible work conditions but in January, Westpac reversed this, requiring her to comply with the company policy of working at least two days per week in an office.

Chandler then made a formal request for flexible working arrangements citing section 65 of the Fair Work Act, which allows for workers employed for more than 12 months who have various life or carer circumstances, including those who are parents of children of school age or younger.

The long-term employee took the matter to the Commission after Westpac refused her flexible working arrangements request.

Westpac, when responding to the matter at the Commission, said there were benefits to office attendance and face-to-face engagement. It also said that allowing Chandler to work wholly from her home would undermine the bank’s ability to enforce its work from home policy on other employees.

The bank also said Chandler’s “present circumstances had arisen because of life choices and preferences of the applicant and without the imprimatur of Westpac”.

In her argument, Chandler conceded there were benefits to in-person office attendance, but noted her team was split between offices in different states and that meetings were conducted virtually.

“This decision puts all employers on notice that they will need ... genuine business reasons to refuse a flexible working request”

In the decision, Commission deputy president Thomas Roberts said that while he accepted Chandler’s circumstances arose out of personal choice, the bank did not provide “reasonable business grounds” to refuse her request.

Roberts also noted that Westpac failed to respond to Chandler’s request for flexible working arrangements in written form in the required 21 days.

He said he factored in the failure to provide reasonable business grounds and the response within 21 days into his decision.

Roberts also noted that Chandler had been working from home “very successfully” for some years, and that her and her team had “performed at a very high level” together under this arrangement.

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Responding to the decision, Westpac said it would consider the ruling, but that “we believe our current approach of 2 -3 days per week in the office strikes the right balance for our people and customers.”

Finance Sector Union national secretary Julia Angrisano said working from home “is a right, not a privilege” and that the decision “paves the way for workers who have caring responsibilities to secure work from home rights”.

“Employers in the banking and finance industry are increasingly relying on the supposed benefit of ‘face-to-face’ contact as a reason to refuse requests for flexible working arrangements and that’s unacceptable,” Angrisano said.

“This decision puts all employers on notice that they will need to have genuine business reasons to refuse a flexible working arrangement request,” Angrisano said.

The ruling comes after recent debate on employers’ work from home policies, after Victorian Premier Jacinta in August said her government would give public and private sector workers the right to work from home at least two days a week.

Sam Nottle, principal lawyer at Jewell Hancock employment lawyers, said the Westpac decision should remind companies that they are legally obliged to respond to requests for flexible working arrangements within 21 days and provide grounds for refusing requests.

“Employers need to consider individual circumstances,” Nottle said.

“If an employee has worked very well from home in the past, you do have to grapple with and address the business grounds on which you’re refusing the request,” Nottle said. “Westpac didn’t do that in this instance,” he said.

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Nottle said a wide range of employees are able to apply for flexible arrangements under the Act, with parents of school age children a broad category, and that employers need to be prepared to follow correct processes and justify why they’re requiring an individual worker to attend the office if they’re refusing a request.

Professor Anya Johnson, head of discipline in work and organisational at the University of Sydney’s business school, echoed Nottle’s warning.

“To assume a blanket policy in a huge organisation that is just imposed regardless of people’s circumstances is going to create a lot of friction,” she said.

Johnson said that flexible work is “an opportunity to be more inclusive for employees at different stages of their life, like the mother in this decision”.

Johnson added that establishing strong processes for employees to make such flexible work agreement requests, would not only help ensure companies meet their legal obligations, but help them better understand how their employees work.

This could lead organisations to better plan to maximise in-office engagement, and only require employees to come in when it’s of most benefit.

“Flexible working has created a bit of a catch 22, in that someone might be pressured to come in for, say, two days a week, but when they’re in, nobody else is there. They’re doing a virtual meeting from the office with colleagues at home and wondering ‘why did I bother coming in?’”

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