Is working from home a right or a privilege? A decision from the FWC on Monday suggests that, in some cases, an employee’s personal circumstances (even where those circumstances involve some degree of ‘life choices and preferences’ made in relation to living and schooling arrangements), coupled with effective individual/team remote performance for an extended period, can anchor an order that an employee perform their role on a completely remote basis.
Background
The decision involves a Westpac employee who has worked for the bank since 2002, and had worked on a predominantly fully work from home basis since mid-2018. The employee has carer’s responsibilities in relation to her two six-year old children.
The bank has a hybrid working policy which requires attendance at a corporate office two days each week. The closest corporate offices are around two hours’ travel from where the employee’s children go to school.
In January 2025, the employee made a request for a flexible working arrangement under the Fair Work Act that she be permitted to work fully remotely from her home, to enable her to meet carer’s responsibilities for her two children.
The bank refused the request, citing what it said were reasonable business grounds. There was a subsequent discussion of compromise arrangements, including that the employee work at a local bank branch for two days a week, rather than attend a corporate office. No agreement was reached, and the employee made an application to the FWC to resolve the dispute.
Decision
During the hearing at the FWC, the bank raised a number of grounds as to why the employee’s request could not be accommodated, particularly having regard to the benefits of face-to-face interaction and the impact that granting the request would have on its ability to refuse similar requests from other employees.
This notwithstanding, the FWC found that Westpac’s refusal of the employee’s request for a flexible working arrangement was not justified on reasonable business grounds, and accordingly made orders granting the employee the right to work on a completely remote basis. In doing so, the FWC cited:
- the employee having worked remotely and ‘very successfully’ for a number of years, with evidence that she and her team performed ‘at a very high level’, high individual performance ratings for the employee, and the absence of any evidence of a loss of productivity or efficiency or a negative impact on customer service as a consequence of existing remote working arrangements;
- the fact that the ‘overwhelming majority’ of the employee’s team interactions are online, with team members functioning ‘very effectively across various physical locations’; and
- the ‘seriously prejudicial’ impact of not making the order, weighed against the bank obtaining ‘some benefit from minimal level of in-office attendance’.
Key lessons
What does the decision tell us? Every case turns on its own facts, however it underlines the need to regularly review and communicate in relation to remote working arrangements. Permitting a longer term WFH arrangement, coupled with evidence that the employee and their team is working effectively, can be fatal to defending a challenge to a business’ rejection of a request for a flexible working arrangement, particularly where this has a significant personal impact on the employee (even one arising from the employee’s own financial and related decisions).
In a nutshell, working from home is certainly not an inalienable right in all circumstances. However, in certain cases, including the absence of careful and ongoing review and management, it can become an entrenched and enforceable way of working.
The judgment is available here: https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc3115.pdf
For further information or to discuss how this decision may impact your business, please do not hesitate to contact the Emplawyer team.
