Beyond Policy – The FWC Reinforces The Duty To Genuinely Consider Flexible Work Arrangements

A recent employment dispute heard by the Fair Work Commission ('FWC') has highlighted the obligation that employers have when dealing with requests for flexible working arrangements. In Chandler v Westpac [2025] FWC 3115, the FWC found that the employer, in refusing their employee's request to work from home, had failed to follow the proper procedure set by section 65A of the Fair Work Act 2009 ('FWA').

This case serves as a reminder that strict adherence to policy without properly consulting an employee in the context of their flexible work arrangement request will be a breach of the FWA.

Facts

Ms Chandler was a part-time employee in Westpac's Mortgage Operations Team. Chandler and her partner had two young children who attended a school that was 25-30 minutes in the opposite direction of Chandler's workplace. Chandler was primarily responsible for dropping off and picking up her kids from school. Her partner was self-employed and had limited capacity to assist with school drop-offs and pick-ups due to his commitments at work.

Westpac, the employer, had a policy which required its employees to attend the corporate office at least two days a week. The closest offices to Chandler were the Kogarah and Parramatta corporate offices, which required a two hour commute from the employee's children's school.

As such, in December 2024, the employee requested approval to work from the Bowral branch, which was significantly closer to the employee, two days per week instead of attending the corporate office. This request was initially approved as a short term 'olive branch', but was later refused in January 2025.

Chandler then filed a formal section 65 FWA request, but this was later refused without reason by Westpac. On 19 March 2025, Chandler received an email from Westpac stating that 'working from home is no substitution for childcare' and 'your arrangements for working remotely may change at any time at Westpac's discretion'.

Decision

Section 65 of the FWA enables employees who meet certain requirements to request flexible working arrangements. If a request is made, the employer is obligated to respond under a set of requirements as set out in section 65A.

In responding to the request, the FWC found that Westpac had failed to follow the procedural requirements set by section 65A. The Commission found that Westpac:

1. failed to provide Chandler with a written response to the section 65 request within 21 days of her formally making the request (s 65A(1) FWA);
2. failed to discuss the request with Chandler prior to the refusal being made (s 65A(3)(a)(i) FWA);
3. did not genuinely try to reach an agreement with Chandler about making changes to her working arrangements (s 65A(3)(a)(ii) FWA);
4. did not have regard to the consequences of the refusal (s 65A(3)(c) FWA); and
5. no reasonable business grounds were provided by Westpac to Chandler (s 65A(3)(d) FWA).

The Commission also discussed whether Westpac had reasonable business grounds to refuse the request in depth. In arguing that they did, Westpac emphasised the benefits that having a mixture of in-person and remote work would have amongst a large workforce. These included fostering collaboration in Chandler's team and meaningful engagement with stakeholders. Further, they argued that having Chandler working from home would disrupt these benefits.

However, the Commission rejected this finding that 'there was no question that Ms Chandler's work can be performed completely remotely'. They found that Chandler and her team had performed their work at a very high level with deadlines being met or exceeded with no loss of productivity or efficiency observed as a result of the existing remote working arrangements.

As a result, the Commission found in favour of Chandler.

Takeaway

This decision is notable for employers, as it highlights the need for genuine consideration of their employee's circumstances and the importance of following the procedure under the FWA when responding to requests for flexible working arrangements. It is also vital that employers properly document the steps taken in doing so. Namely, employers in considering a section 65 request should:

• Discuss the request with the employee and attempt to reach an agreement about making changes to the employee's arrangements;
• Have regard to the consequences for the employee should their request be refused;
• Consider the possible consequences to how their business operations would be impacted if the request was approved; and
• Assess each request having regard to the employee's individual circumstances as well as any specific reasons as to why in-office attendance is required to perform certain duties associated with a particular role and not blindly apply company policies without adequate consideration of the above.

If you have further queries regarding this case or a related matter, please contact Michael Bishop or Amelita Hensman of our Employment Law Team.

Should you wish to speak further on this, please contact Michael Bishop or Amelita Hensman of our Employment Law Team.

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.