A Westpac employee has won her right to work from home, in a ‘surprising’ decision that overrules the bank’s office mandate. (Source: Getty)
A Sydney mum has won her work-from-home fight against her employer, major lender Westpac, with the Fair Work Commission ruling in her favour this week. A legal expert says the decision was a “significant” one and could set the stage for other workers to push back against forced office arrangements.
Fair Work deputy president Tom Roberts found Westpac had failed to establish “reasonable business grounds” for refusing the mortgage team worker’s flexible work request. While the bank argued there were benefits to having a minimum level of office attendance, Roberts found they were “generalised” and “insufficient”.
While individual cases will be decided based on their own set of facts, McCabes Lawyers principal Tim McDonald told Yahoo Finance the decision seemed to “tip the balance more in favour of employees” wanting to work from home, with the bank worker arguing it was necessary so she could make school drop-offs and pick-ups.
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“I’m not sure whether all cases are going to be decided in that way, but I think anyone who wants to try and work from home all the time will be relying on that case and trying to say that the test for reasonable business grounds is a pretty hard one and has to be well articulated,” he said.
McDonald noted that Westpac’s hybrid working policy, which requires employees to work from a corporate office two days per week, was a fairly typical working arrangement among companies.
“The fact that the Commission didn’t uphold [Westpac’s policy], I think, is pretty significant,” the workplace lawyer said.
Australian workers have the right to request flexible working arrangements under the National Employment Standards. This can include requests to work from home or from another location.
Workers will need to have been with their employer for at least 12 months and meet eligibility criteria, such as being a parent or carer of a child who is school age or younger.
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The Sydney mum requested in January to work remotely from her home in Wilton, south of Sydney, to allow her to care for and do school pick-ups and drop-offs for her two young kids.
The closest office to the worker was in Kogarah and Parramatta, which was about two hours from the private school her two six-year-old daughters attend.
The worker is responsible for pick-ups and drop-offs as her partner is self-employed and works at variable locations in Sydney and interstate.
She had been employed by Westpac since 2002 and had a history of working remotely from home. She had moved with her family to Wilton in 2021.
Westpac’s office in Kogarah was two hours from the private school where the Westpac worker sent her kids. (Source: Northrop)
Westpac refused the worker’s request, with Fair Work noting it failed to respond within the legally required 21 days of the request.
The major bank initially did not provide any reasons for the refusal. However, it later cited the bank’s remote working policy.
The worker then proposed an alternative where she worked from a local Westpac branch at Bowral two days per week rather than the closest corporate office at Kogarah. This was also rejected by Westpac.
During the dispute, Westpac stressed the importance of its hybrid working policy to provide a mix of in-person and remote work amongst its large workforce.
It argued there were a number of benefits to having a minimum level of office attendance, including fostering collaboration and engaging with stakeholders.
The bank noted team huddles and activities, training sessions and the use of ‘call boards’ at the corporate office helped team members retain a customer focus.
Westpac CEO Anthony Miller previously cautioned Victoria’s work from home right could create tensions between teams. (Source: AAP/Getty) · Source: AAP/Getty
Westpac also said it was “unfair” to grant the flexible work arrangement, given it was down to “personal decisions of the applicant”, such as the location of her home and the school the couple had chosen.
The bank also argued the worker’s partner could play a larger role in caring for their kids, and it wasn’t “unfair or unreasonable” to expect the couple to pay for the extra cost of child care.
It comes after CEO Anthony Miller warned the Victorian government’s two-day work-from-home guarantee could create tensions in teams.
Fair Work ruled in favour of the worker and determined Westpac had to grant the woman’s request for flexible work arrangements.
Roberts said the evidence did not establish there were reasonable business grounds for the refusal. For example, he noted team huddles can be conducted by Microsoft Teams and training sessions were available online, while social activities were often held interstate.
Further, Roberts added there was “no question” the mum’s work could be “performed completely remotely” as it was something she had been doing successfully for a number of years with deadlines “met or exceeded”.
“A loss of productivity or efficiency or a negative impact on customer service has not materialised as a consequence of the existing remote working arrangements,” he said.
“It is unlikely in my view that a continuation of those arrangements would generate those sorts of adverse results.”
McDonald said the decision appeared to “tip the balance more in favour of those wanting to work from home”, making it clear businesses had to justify flexible work refusals.
“It seemed as though the criticism of Westpac in this case was that they didn’t really genuinely try to engage with the issue about working from home, but maybe took a blanket approach in circumstances where it seemed as though she had been able to successfully work from home all the time,” he said.
Finance Sector Union national secretary Julia Angrisano said the decision paved the way for workers who had 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,” she said.
“This decision puts all employers on notice that they will need to have genuine business reasons to refuse a flexible working arrangement request; employers will also need to demonstrate that they have met all their obligations under the Fair Work Act before any refusal.”
It’s worth noting the decision isn’t a binding precedent and the Commission is able to change its mind on the interpretation of the legislation.
“There’s a learning from an employer’s point of view that if you’re going to deny a flexible work request, you want to make sure that you’ve given a thorough consideration before doing that and try to engage and look for a solution,” McDonald said.
“Also to be able to articulate what the reasonable business ground is.”
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