Flexible work and a recent FWC decision: what you should actually do next

31 Oct

Remote and hybrid working continue to spark strong views. A recent Fair Work Commission (FWC) decision involving a Westpac employee reignited the “is there a right to work from home?” debate. The short answer remains no—there is no general right to work from home. The longer answer is more useful for employers: case-by-case decisions, clear evidence, and consistency with past practice matter more than slogans about culture or collaboration.

The decision in plain English

An eligible employee (a parent of school-aged children) asked to work from home to manage school drop-off and pick-up. The Commission backed the employee—not because “WFH wins”, but because:

the request was tied directly to caring responsibilities protected under section 65 of the Fair Work Act;
the employee had performed successfully from home for years;
the role and team were already operating effectively online; and
the employer reversed a previously approved arrangement without concrete, role-specific grounds.

This is not a green light for universal WFH. It’s a reminder that eligibility + nexus + evidence carry the day.

What this is not

Not a blanket right to remote work.
Not a ban on office attendance requirements.
Not a pass for personal lifestyle choices to override operational needs.

What carried weight with the Commission

Think of four levers that moved the outcome:

Eligibility & Nexus
Only certain groups can make a statutory flexible work request (e.g., parents/carers, people with disability, 55+, experiencing family or domestic violence). The employee showed a clear link between her caring duties and the flexibility requested. Where that link is missing or weak, claims falter.
Track Record
Longstanding, successful remote performance is hard to argue against. Evidence of meeting targets, quality standards and availability expectations counts.
Role Reality vs. Rhetoric
If the actual work is already delivered through digital workflows—online huddles, dispersed team locations, virtual training and mentoring—generic statements about “needing to be in the office” won’t cut it.
Consistency & Fairness
Reversing an arrangement that’s been tolerated and effective for years requires specific, defensible reasons. Policy shifts need proper foundations, not just preference.

“Reasonable business grounds” need to be more than slogans

You can refuse a flexible work request on reasonable business grounds. But those grounds must be evidence-based and role-specific. Consider whether you can demonstrate, with examples, that in-person presence is necessary for:

customer outcomes (e.g., walk-in traffic, physical inspection, on-site service);
safety or supervision obligations;
hands-on training or shadowing that cannot be replicated effectively online;
data security or technology constraints that cannot be reasonably mitigated;
measurable productivity or quality impacts tied to co-location in this team.

If your rationale is essentially “connection” or “culture”, expect close scrutiny. Translate those concepts into observable impacts (missed handovers, errors, rework, delayed incident response, compliance exposures) and show why remote delivery is insufficient for this role.

Past practice cuts both ways

Personal choices (e.g., moving further from the office) don’t automatically entitle an employee to WFH. But if you have endorsed remote work for years in that role, you’ll need a compelling, documented reason to unwind it. Set expectations early, keep records, and avoid ad-hoc exceptions that become tomorrow’s precedent.

A defensible process you can put into practice

1) Triage eligibility and nexus

Is the employee eligible under s.65?
Is there a direct connection between the circumstances (e.g., caring duties) and the flexibility requested?

2) Gather role-specific evidence

What are the inherent requirements of the role?
Which tasks objectively require on-site presence, and how often?
What does performance data say about output, quality, responsiveness and risk when remote?

3) Explore reasonable alternatives

Partial days in office, adjusted start/finish, staggered shifts, split weeks, compressed hours, trial periods with defined metrics.

4) Decide and document

If approving: set clear parameters (days, hours, availability windows, equipment, security, review date).
If refusing: specify reasonable business grounds tied to the role, the evidence considered, alternative options explored, and why they were not suitable.

5) Review and adjust

Build in a review point (e.g., 8–12 weeks) with criteria agreed up front.

Templates you can adapt today

Decision criteria (include in your manager note)

Inherent requirements that necessitate on-site presence.
Specific tasks that cannot be delivered remotely (with examples).
Impact on customers/compliance/safety if remote.
Performance and availability data under remote/hybrid conditions.
Team configuration (location, handoffs, coverage).
Alternatives trialled and results.

Manager wording (refusal on reasonable grounds)

We considered your request dated [dd/mm/yyyy] alongside the inherent requirements of your role. Several duties—[list duties]—require on-site presence because [specific reasons and examples]. We explored [alternatives] but they do not adequately address [identified risks/impacts]. On that basis, we’re unable to approve the request under section 65 due to reasonable business grounds. We can support [alternative arrangement] and will review this on [date].

Manager wording (approval with conditions)

We approve your request from [date] subject to:
• Work pattern: [days/hours], core availability [times].
• Deliverables & measures: [KPIs/SLAs].
• Security & equipment: [requirements].
• Check-ins: [cadence].
• Review: [date].
Please let us know if circumstances change earlier.

Policy and governance tune-ups (quick wins)

Policy language: Keep flexibility principles, eligibility references and a clear process. Avoid absolute rules that remove discretion.
Manager guide: Provide a one-page triage checklist and decision templates (above).
Data discipline: Track outcomes of flexible arrangements (service levels, quality, safety incidents) so future decisions are evidence-rich.
Change management: If shifting your hybrid model, use notice periods, trials, and a written rationale anchored to service, safety, and compliance—not vague cultural aims.

Bottom line for employers

There’s no universal right to work from home. There is an obligation to assess eligible requests carefully, test your reasoning against the real work of the role, and remain consistent with what has already worked in your environment. Get those three things right and you’ll reduce disputes—and be better placed to defend your decision if challenged.

Need help pressure-testing your policy or a live request?

Winnchester can review your flexible work requests, scripts and decision records to ensure they’re fair, defensible and aligned to the Fair Work Act. Book a 15-minute discovery call to get started.

Nathan Hackett