Chandler v Westpac: FWC Orders Westpac To Grant Flexible Work Request. What Employers Must Know.
Summary
The Fair Work Commission directed Westpac to grant an employee’s request to work remotely so she could manage school pickups for her six-year-old twins. The Commission found Westpac failed key s.65A process requirements and did not establish reasonable business grounds to refuse. It also rejected arguments that an order would be inconsistent with the enterprise agreement, clearing the way for orders under s.65C(1)(f)(i).
The facts in brief
The employee was a part-time mortgage operations worker based historically at Kogarah with years of successful remote work history.
The employee requested to work remotely from home in Wilton to manage school drop-off/pick-up with an alternative to work two days a week from Westpac’s Bowral branch.
Employer responded by refusing the application, citing hybrid policy (two days in a corporate office), later raising broad collaboration/training/customer service reasons.
The case involvement some timeline issues such as no written response within 21 days, initial refusal without reasons, limited pre-refusal consultation or consideration of consequences for the employee.
The law applied
Section 65A – Responding to flexible work requests
Discuss the request with the employee.
Genuinely try to reach agreement.
Have regard to the consequences for the employee if the request is refused.
Refusal may only be on reasonable business grounds.
Respond in writing within 21 days, explaining reasons and any alternatives.
Section 65C – Commission’s powers on disputes
The FWC can order an employer to treat grounds as (not) reasonable, take further s.65A steps, or grant the request (or specify different changes).
The FWC considers fairness between the parties and ensures no inconsistency with the Act or a fair work instrument.
What the Commission decided
Procedural non-compliance under s.65A
Failure to respond within 21 days.
Refusal occurred before consultation and before genuinely trying to reach agreement.
No evidence that the employer considered the consequences of refusal.
No “reasonable business grounds” made out
General claims about collaboration, training, and customer service were unsupported or unquantified.
The team’s proven remote performance and available technology (e.g., Teams, online training, remote mentoring) were not adequately addressed.
The role had been successfully performed from home for years with strong KPIs and predicted losses were not shown to be significant.
Fairness balanced in the employee’s favour
Requiring two office days would impose serious personal and financial prejudice on the employee’s family.
Any marginal benefit from face-to-face attendance was outweighed by the demonstrated effectiveness of remote work within a distributed team.
Enterprise agreement argument rejected
Westpac argued any order had to align with Clause 19 (hybrid/home-based arrangements) of the Westpac Group Enterprise Agreement 2025. The Commission held Clause 19 sits alongside Clause 20 (flexible working arrangements) and cannot curtail NES rights. In any event, no inconsistency arose that would block an order under s.65C(1)(f)(i).
The outcome was that The Fair Work Commission indicated it would make an order granting the employee’s requested arrangement and that the order would issue separately.
Why this case matters (for employers)
Process isn’t paperwork. It's obligatory. Missing the 21‑day deadline, failing to consult, or skipping a consequences assessment can undermine a refusal even before “business grounds” are tested. Build a checklist and keep contemporaneous file notes.
Evidence. Not slogans. If you claim productivity, efficiency, or customer-service impacts, quantify them. Identify workflows, volumes, SLAs, risks, and why alternatives (e.g., Teams, online training, hub days, branch attendance) won’t work.
Policies don’t trump the NES. Enterprise agreements and hybrid policies sit under the NES. They can guide decisions but cannot impose a blanket “two-days-in-office” rule that short-circuits s.65A’s case-by-case test.
Fairness cuts both ways. The FWC will weigh the practical hardship for an employee against any substantiated business detriment. Where the work history shows remote success, the balance often favours flexibility.
Practical steps to get s.65A right
Acknowledge in writing immediately. Diarise Day 21. Set a reminder before Day 21. Stick to it.
Meet the employee and explore alternatives (different days/hours, branch/hub days, staged reviews).
Prepare a consequences note (employee’s circumstances) and a business-grounds memo (data, risks, trials tried).
If refusing, give a detailed written decision. This means reasons, how they apply, any acceptable alternatives, and the effect of s.65B/C.
Review policies and enterprise agreements so they reference the NES and avoid blanket rules.
Use trial periods with KPIs and scheduled check-ins, then review.
FAQs
Does a hybrid policy guarantee two in-office days are “reasonable business grounds”?
No. Policies guide but do not replace the statutory test. You still must consult, consider individual consequences, and prove significant detriment if refusing.
Can an enterprise agreement block the FWC from ordering flexibility?
Not where that would diminish NES rights. The Commission will look at the true operation of agreement terms alongside ss.55, 56, 61 and s.65C(2A).
What if we missed the 21-day deadline?
It is a serious breach of s.65A that weighs against the employer in any s.65C arbitration and may expose the employer to civil penalties in other proceedings. Rectify process gaps urgently.
Need help?
NorthBridge Legal advises employers and employees on flexible work, hybrid policies, and FWC disputes. For audits of your s.65 workflows, decision letters, or to defend an application under s.65C, contact NorthBridge Legal.
