Flexible Working Arrangements - Case In Point

The Applicant made a request to her employer, Westpac Banking Corporation, for a flexible working arrangement under section 65 of the Fair Work Act 2009 (Cth). She sought permission to work remotely from her home in Wilton, south of Sydney, to enable her to care for her two young children and manage school drop-offs and pick-ups.

The Applicant commenced employment with Westpac in 2020 and the agreement at the time was that her role would be performed on a permanent basis from the Kogarah corporate office. From early 2017, however, she began working from home. Following her return from maternity leave in April 2021, she continued to work remotely full-time until August 2022, when she was required to attend the Kogarah office one day per month pursuant to an agreement with Westpac.

Westpac maintains a hybrid work policy requiring employees to attend a corporate office two days per week. On that basis, Westpac refused the Applicant’s request for a continued fully remote arrangement.

In subsequent discussions, the Applicant proposed an alternative arrangement under which she would attend the Bowral Westpac branch two days per week instead of travelling to Kogarah. Westpac rejected this proposal. A conciliation conference before the Fair Work Commission did not resolve the matter.

In these proceedings, the Applicant sought orders granting her original request or, in the alternative, approving her proposed compromise to work two days per week at the Bowral branch. Westpac contended that there were genuine and reasonable business needs requiring the Applicant to attend the Kogarah corporate office (or another corporate office) at least two days per week, and that its refusal was based on reasonable business grounds. 

Submissions

Westpac submitted that granting the Applicant’s request would result in a significant loss of efficiency and productivity and would negatively affect customer service. It argued that its hybrid work policy represented a balanced and consistent approach to managing flexible work across a large workforce.

According to Westpac, a minimum level of in-person attendance delivers key business benefits, including enhanced collaboration and engagement within teams, closer stakeholder relationships, more effective communication in centralised processes such as document management, and a stronger customer focus. It also identified the importance of participating in team “huddles,” training programs, and on-site activities. Westpac referred to its in-office “call boards,” which convey key operational messages not accessible to remote staff. While acknowledging that most work functions could be performed remotely, Westpac contended that team effectiveness and cohesion were substantially improved through regular face-to-face interaction.

In contrast, the Applicant argued that there were no reasonable business grounds for refusing her request. She maintained that her duties did not require access to on-site IT systems or any specific physical resources, and that her team operated effectively under a remote and flexible model where face-to-face interaction was not a standard feature of the work.

Westpac further submitted that granting the request would be unfair, as it would exempt the Applicant from a policy requirement applicable to all employees without a reasonable justification. It contended that such an exemption could undermine its ability to enforce hybrid attendance requirements across the organisation. Westpac also asserted that the Applicant’s personal circumstances—including her choice of residence and her children’s schooling—were matters of individual preference made without Westpac’s approval. It argued that it would be unreasonable to alter its operational requirements to accommodate those personal decisions.

Additionally, Westpac submitted that the evidence indicated the Applicant’s partner was capable of assuming a greater share of childcare responsibilities, and that the family’s improving financial position made it reasonable for them to bear any additional childcare costs rather than seeking an exception to corporate policy.

The Applicant submitted that Westpac would suffer no real detriment if her application were granted, contending that the only imposition on the Respondent would be the absence of in-person interaction. She noted that the overwhelming majority of her team’s communication and collaboration already occurred online, as a necessary consequence of the team’s interstate composition. In contrast, the Applicant emphasised the substantial personal and financial hardship she and her family would face if the request were denied.

Decision

Deputy President Roberts found that the purported benefits of face-to-face contact did not outweigh the hardship that the Applicant and her family would experience if she were required to commute to the corporate office.

Deputy President Roberts accepted that the Applicant’s current circumstances were, at least in part, the result of her personal choices, including her decision to relocate and enrol her children in a particular school. Deputy President Roberts also accepted that there was no evidence that the Applicant had obtained any guarantee from Westpac that her remote arrangement would continue indefinitely. Nevertheless, it was noted that Westpac had allowed the Applicant to work remotely for a significant period.

The Deputy President did not accept Westpac’s contention that the Applicant’s partner could reasonably assume greater responsibility for before and after school care. The evidence established that the partner’s work required physical attendance at various stores, with irregular hours and frequent interstate travel. When based in Sydney, he was routinely away from home from 4:30 a.m. until approximately 6:00 or 6:30 p.m., working six days per week, including Sundays. Adjusting his schedule to accommodate school routines would necessitate unpaid days off and weekend work.

The Deputy President also considered the family’s financial circumstances and the additional cost burden of before- and after-school care.

It was further observed that the Applicant’s team was specifically structured to operate effectively across various locations through online collaboration. While Westpac might derive some advantage from limited in-office attendance, the Deputy President found that denying the request would cause serious and disproportionate harm to the Applicant and her family. On balance, the fairness considerations weighed in favour of granting the application.

Deputy President Roberts also found that Westpac’s evidence regarding the benefits of physical attendance was generalised and insufficient to demonstrate reasonable business grounds. The evidence showed that team ‘huddles’ and training sessions were routinely conducted via Microsoft Teams, and that most social events were interstate, with only a few large-scale activities held in Sydney in the prior year.

Concerns about the Applicant’s ability to mentor staff were similarly unconvincing. The Applicant had successfully trained two new employees remotely during the COVID-19 pandemic, continued to provide informal mentoring via Teams, and had not mentored any new employees since 2022.

In finding in favour of the Applicant, Deputy President Roberts concluded that her role could be performed entirely remotely. The Applicant and her team had consistently met or exceeded performance targets, maintained strong results, and received high individual ratings. There was no evidence to suggest any decline in productivity, efficiency, or customer service under the remote working arrangement.

Lessons for the Employer

When refusing a flexible work request, the employer must demonstrate clear, specific, and substantiated business grounds. General statements about potential impacts on collaboration or customer service may be insufficient. Supporting evidence should identify measurable effects on the employee’s team, role functions, or customer outcomes.

Evaluate the individual circumstances of the role. Employers should assess each request in the context of the employee’s actual duties and performance. Where the evidence shows the employee can successfully perform their role remotely, a refusal premised on general policy considerations is unlikely to withstand scrutiny.

Workplace policies must serve as guiding frameworks, not inflexible rules. Employers should avoid treating attendance requirements as blanket mandates without considering individual situations.

Engage meaningfully in consultation. Employers should actively explore alternative arrangements (for example, attendance at a closer office, flexible hours). Any alternative proposed by the employee should be genuinely considered, with detailed reasoning provided for any rejection.