In post-pandemic Australia, return-to-office mandates are a leading point of tension between employers and their workers.
While a return mandate is generally valid, some workers are successfully challenging their bosses, clearing a path for more employees to secure work-from-home arrangements.
There is also a broader push by unions to lock in an employee’s right to flexible work.
What was the Westpac work-from-home case?
This week, a longtime Westpac employee, Karlene Chandler, won her Fair Work Commission (FWC) case to work from home, overturning an order from the bank to attend a corporate office two days a week.
Chandler lives with her partner in Wilton, south of Sydney, and two six-year-old daughters. She had worked full-time or near full-time from home for lengthy periods during her 23 years at the bank before receiving the return mandate.
Chandler, who is in the bank’s mortgage operations team, formally asked for flexible work arrangements in January, relying on a section of the Fair Work Act which allows eligible employees with carer responsibilities to make such requests.
The obstacle to the office mandate was that it would take about two hours for Chandler to travel from her daughters’ school to Westpac’s nearest corporate office in Kogarah. Given the working arrangements of her partner, Chandler was responsible for school pick-ups and drop-offs.
Chandler put forward an alternative arrangement to work from a local Westpac branch two days a week, which was rejected.
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Why did Westpac lose?
Westpac’s first misstep was that it was found to have breached various procedural requirements, including failing to respond to the request within the required 21 days.
The relevant manager also “did not discuss the request” or “genuinely try to reach agreement”, according to the decision.
The bank also unsuccessfully argued it had reasonable business grounds for refusing the request.
While Westpac’s view was that in-person “huddles”, activities, training sessions and the use of “call boards” helped employees keep a customer focus, the benefits were deemed to be too general.
Besides, Chandler had worked remotely for years and had retained high individual performance ratings. Her team was also spread out across the country, undermining the benefits of attending a corporate site in Sydney.
The commission ruled on 20 October that Westpac must grant Chandler’s request.
The Finance Sector Union national secretary, Julia Angrisano, said the decision paved the way for workers who have caring responsibilities to secure work-from-home rights.
A Westpac spokesperson said it was unable to comment on matters relating to individual employees.
“We believe our current approach of two to three days per week in the office strikes the right balance for our people and customers,” the spokesperson said.
Can anyone work from home now?
The Labor government’s industrial relations changes – the Secure Jobs, Better Pay Act 2022 – cleared the way for cases like Chandler’s by putting new conditions on how employers must respond to flexible work requests.
Employees who have worked for an employer for at least 12 months may request flexible work arrangements if they are a parent or carer, have a disability, are 55 or older, are pregnant, or are experiencing, or supporting someone experiencing, family and domestic violence.
Giuseppe Carabetta, associate professor workplace and business law at the University of Technology, said the Westpac ruling, along with similar previous ones, sent two clear messages.
He said “employers can’t rely solely on an internal company policy when rejecting flexible work requests”.
Second, when responding to requests, employers must also provide “detailed and specific business grounds for refusals”, substantiate such claims and explain the detriment likely caused by the employee working from home.
“Reasonable business grounds include things like loss of efficiency and productivity or a significant impact on customer service, factoring in the size of the workplace or team as well,” Carabetta said.
Is flexible work a right?
No, Australian employees do not have the enshrined right to flexible work. But there are several significant developments changing our workplaces.
Victorians who could reasonably do their job at home could soon have a legal right to work from home two days a week under Australia-first laws recently announced by the premier, Jacinta Allan.
Meanwhile, there is a FWC process designed to modernise the award for clerical and administrative workers by taking into account work-from-home arrangements.
The clerks award, which informs the working conditions of millions of Australians, is seen as a test case for the broader workforce.
Employment and industrial lawyer Julian Arndt said the clerks award process would deal with the broader question of how to update the modern award for something other than the traditional “nine to five in the office” work model.
“From a union side, the primary claim will be to universalise as far as possible the ‘right’ to work from home, refusable only in limited circumstances,” Arndt said.
“In the Westpac case, the worker could make her claim because she had caring responsibilities for her schoolchildren and wanted flexibility to accommodate that.
“The clerks award case will look at whether all workers should have that right to request work from home and on what grounds it can be refused.”
