Flexible working and what if means for businesses of all sizes
🧭 Why Westpac lost its flexible working case
A recent Fair Work Commission (FWC) decision has reignited debate about whether employees have flexible working rights in Australia. Westpac lost its argument for denying an employee (Westpac v Chandler) who sought flexible working arrangements to support school pickup and drop-off duties.
There is an argument that this decision de-prioritises business needs, but in reality the right already exists under section 65 of the Fair Work Act. Under the FWA, only certain categories of employees can make such requests, including those living with a disability, aged 55 or older, who are pregnant, caring for children or family members, or experiencing family and domestic violence. Critically, this employee met the criteria to make a request to work from home, as her parental duties directly related to her caring responsibilities.
The Commission found that her need to pick up and drop off her two six-year-old children from school was therefore clearly connected to her role as a parent, bringing her within the Act’s protection. However, the same commissioner denied an earlier case brought by a father as he could not provide clear evidence of how the flexible arrangements were necessary for him to fulfil those parental responsibilities.
Therefore, it is critically important for leaders to understand this distinction when considering flexible working arrangements. As with most things in the employment legislation space, looking holistically at the situation is critical. It is not just about business needs. There is overwhelming research that shows employees who are happy in their employment are highly engaged, and that has an actual financial impact on the business. For instance, this employee had been working remotely since 2017, met their performance criteria, was a key team player and could perform effectively remotely. Additionally, the employee actually offered to work at a Westpac site closer to her home two days a week.
So the employee could argue that they had been successfully performing their role remotely for years and set up their life around it, including childcare arrangements. Interestingly, because of the arrangement, she had moved two hours from the offices, and the school was 2.5 hours from the office, which the commission also took into consideration. Taking into consideration all the facts, the commission concluded that the employee was entitled to continue with those arrangements.
Westpac revoked this arrangement without a logical rationale or clear explanation and that alone will always get you into bother legally! Further, they failed to meet the 21 day response time and did not properly consult with the employee. Additionally, there argument for “reasonable business grounds”, including the need for collaboration, engagement, mentoring and alignment with operational processes, that could not be substantiated. In fact, when looked at closely, team huddles were facilitated on Teams, team members were in different states, there were no colleagues for the employee to mentor (and even so, they had done so successfully online previously) and that most training was online based! Therefore, the argument did not stand up as a strong business rationale for the decision.
This decision also shows that relying on “reasonable business grounds” need to be employee and team specific, evidence-based and clearly demonstrate that the role could not be performed effectively with the request. Given COVID19 lockdown era, that latter argument could be difficult. Therefore, it is unlikely that trying to rely on broad culture and collaboration requirements won’t cut it.
Our Key Tips for leaders & business
Consider Talent Attraction and Retention
Most employees of all ages value flexibility, working from home and remote working. Great talent also love being digital nomads.
Let’s face it, many employees love hybrid and remote working, and there is evidence that supports this approach as favourable to business. Of course, many jobs require on-site attendance. This is case is not about remote working it’s about thinking flexibly and broadly about how your business operates now and in the future.
Have a flexible working policy, but make sure you consider each case on its merits.
This decision shows that relying on “reasonable business grounds” need to be employee and team specific, evidence-based and that the role cannot be done effectively done as requested. With remote working, if your staff were effectively remote working during COVID19 lockdown era, you will need a strong argument.
It is unlikely that trying to rely on broad culture and collaboration requirements won’t cut it in and of itself.
Therefore, you need to treat each request on its merits holistically.
The key takeaways for leaders and businesses (of all sizes) –
- Like most things’ employment based, long-standing arrangements whether formal or informal cannot just be arbitrarily changed without strong justifiable reasons, Past practice matters as it sets a precedent.
- Each case needs to be assessed individually and holistically.
- Make sure you consider what practice is happening across the business to ensure fairness. For example, if one team all work remotely, what makes it a sound business decision to allow it for that team and not others.
- As an employer, especially smaller employers, you need to demonstrate fairness, flexibility and sound reasoning. You also must genuinely consult with the employee and keep detailed records of all communications and decisions and the basis of those decisions.
This is another leadership moment
This Is a Leadership Moment. Like many employment issues, this isn’t just a compliance issue, it’s a strategic inflection point. While some see it as red tape, visionary leaders see it for what it really is: a strategic lever for performance, wellbeing, and talent retention. Beyond the legalities, it invites leaders to reimagine to build trust, foster wellbeing, and improve performance.
Flexible working is about creating workplaces where people can manage their complex lives and give their best to their role, team and business. Where performance, employees’ lives and wellbeing are not in tension, but in harmony. And that’s the kind of leadership that attracts great people, keeps them, and brings out their best.
Because in a world where talent is mobile, your ability to engage A* class talent is your competitive edge.
As a leader myself of an SME, I make it work and create a win-win-win (me, the business and the employee) and if you try hard enough there is always a solution, rather than feeling forced to by law (which many HR professionals will spout at leaders). In fact, I’ve always tried to do so throughout my career, even before these rights came into being!
We advocate that all leaders develop themselves to the Unitive Leadership level, that is the highest Leadership competency level. These leaders are visionaries, inclusive and consider the whole eco-system within and without the business. The business is seen as a living system that is interconnected, values-driven, and person-centred at its core. Transformational and Servant leadership form part of unitive leadership and inspire people to align with a shared vision and strategy, not through control, but through purpose, empathy, and empowerment. It’s about inclusivity, respect, trust and psychological safety.
