A recent decision provides some guidance as to how the Fair Work Commission may deal with flexible working arrangement requests under its new arbitral powers.  

Karlene Chandler was a long-term staff member of Westpac who lived outside of Sydney. At the start of her employment, her work location was the Kogarah corporate office, but in 2021 she moved further away from the office and enrolled her children in a local school.  

In late 2024, Chandler requested to work from the Bowral office rather than Kogarah. This was temporarily approved, but then later reversed.  

She then made a formal flexible working arrangement request around 17 January 2025 under s 65 of the Fair Work Act 2009 (Cth) (FW Act) to allow her to perform school drop off and pick-up. Westpac ultimately rejected this request formally around 30 May 2025.  

Failure to follow the process of s 65A 

Westpac admitted that it did not respond to the request within 21 days as it was required to do under the new section 65A(1) of the FW Act. It was also found that the employer did not discuss the request with Chandler, nor did they try to reach a genuine agreement with the employee, as they were required to do under section 65A(3).  

The failure of the employer to follow these procedural requirements was taken into consideration by the Fair Work Commission (the Commission) in determining the dispute.  

Reasonable business grounds  

The Commission then considered whether the employer had reasonable business grounds for refusing the request.  

Westpac submitted that granting the request would result in a significant loss in efficiency and productivity, and that it would also have a significant negative impact on customer service.  

However, Deputy President Roberts found that much of the employee’s work could be performed remotely, and noted that the Applicant had been performing well in a remote role for a number of years. The Commission found that Westpac only led general evidence about the adverse impacts to its business should the request be approved, and this was ultimately insufficient.  

Fairness between parties 

The Deputy President considered fairness between parties and concluded that deciding against the arrangement would be prejudicial to the Applicant, whose partner was not realistically available to assist with school drop off and pick up due to work commitments.  

What does this decision mean for employees and employers?  

This single-member decision does not mean that all work-from-home requests will be approved by the Commission.  

However, the decision is significant in that it shows changes to the FW Act under the Fair Work Amendment (Secure Job Better Pay) Act 2022 mean that the Commission can and will arbitrate on an employee’s flexible working arrangement request.  

The legislative amendments also mean that employers will have to take flexible working arrangement requests seriously. Employers will have to comply with the new mandatory procedural requirements of the amended FW Act, and lead substantive evidence for the refusal if disputing a claim.  

This information is advice only and is not legal advice. If you require assistance with a flexible working arrangement, please make an appointment with Henry Bournes for a confidential consultation.