Whats the story with WFM!

  • November 7, 2025
  • Posted by: Justin Prince
  • Category: Human Resources and Industrial Relations
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Cartoon “IR Geek” sits cross-legged on a gold balance scale between “Employer Obligations” and “Employee Rights.”

Two Cases. One Message.

The law hasn’t changed — but how it’s enforced absolutely has.

First it was Westpac, then InterSystems — both examined by the Fair Work Commission for how they handled requests for flexible work. The contrast between them makes one thing clear:

It’s not about whether the request is approved or refused. It’s about how well the employer followed the process — and whether the justification holds up under legal and evidentiary standards.

Case 1: Chandler v Westpac — When Policy Doesn’t Get You Home

Westpac declined a formal flexible work request from a long-serving employee who had years of high-performance remote work behind her. The reasons? Hybrid Work Policy and general business needs.

The Commission looked past the policy and zeroed in on compliance with section 65A of the Fair Work Act — which requires genuine consultation, timely written response, and a clear link between refusal and operational grounds.

Westpac failed on all fronts:

  • No timely written response
  • No genuine discussion
  • No consideration of personal impact
  • No evidence-based business justification

The Commission granted the request and made it clear: Enterprise Agreements do not override the NES when they constrain employee rights.

Case 2: Collins v InterSystems — Employer Gets It Right

In contrast, Collins v InterSystems involved a request for two remote days per week due to parenting responsibilities. The employer offered one day, but declined the full request.

This time, the Commission backed the employer.

Why?

  • The request didn’t meet the formal NES requirements
  • Even if it had, the employer demonstrated reasonable business grounds, including the operational need for in-person collaboration and customer service impact

This was a textbook example of how to handle a request lawfully — not by saying yes, but by saying no the right way.

IR Geek Analysis: The Rules Are the Same — But the Bar Is Higher

These aren’t new rules — they’re existing obligations being enforced with more scrutiny.

In Chandler, the refusal was procedurally and evidentially weak. In Collins, the refusal was grounded in real evidence, applied lawfully, and communicated appropriately.

This isn’t about being flexible at all costs — it’s about understanding when, why, and how you can refuse a request without creating liability.

Valid Grounds for Refusal — If You Can Prove Them

The Act allows for refusal on “reasonable business grounds.” That doesn’t mean preferences. It means demonstrable, lawful, risk-based reasons.

1. Safety & Compliance

You are still responsible for WHS — even at home. That includes:

  • Risk assessments of the home setup
  • Managing ergonomic, environmental, and psychological risks
  • Ensuring compliance with duty-of-care obligations

If the home setup can’t be assessed or managed, the risk shifts back to you — and that’s a valid concern.

2. Operational Disruption

Some roles just aren’t compatible with remote work:

  • They depend on access to on-site systems
  • Require real-time collaboration with on-site teams
  • Involve supervision, customer-facing work, or in-office coordination

Where face-to-face is operationally necessary, remote requests can be declined — but only if you’ve mapped the role to the risk.

3. Monitoring & Supervision

If workloads, availability or outputs can’t be monitored remotely in a way that aligns with team standards or customer expectations, that’s a lawful reason to decline.

This doesn’t require surveillance — but it does require a plan for how work is measured and how accountabilities are tracked.

4. Trackability and Award Compliance

Following the Woolworths and Coles decisions, employers must now meet minimum Award entitlements in every pay period. That means:

  • Real-time tracking of hours worked, including start/finish and breaks
  • Accurate classification, penalties, and higher duties priced by cycle
  • Transparent, defensible records

If the employee resists structured hours or operates outside office norms, your ability to comply with the Award breaks down.

IR Geek view: You can’t defend what you can’t measure.

5. System Cost and Complexity

Compliance is possible — but not always cost-effective. Employers can refuse if the cost of:

  • Installing digital time capture tools
  • Configuring award engines
  • Resourcing reconciliations or exception handling …is disproportionate to the nature of the role or team.

The law doesn’t require you to absorb unlimited cost just to say yes.

6. Home Office Infrastructure and WHS Overheads

Facilitating remote work isn’t free. Employers must consider:

  • The cost of equipment (laptops, monitors, VPN, etc.)
  • Ongoing IT and helpdesk support
  • WHS inspections, ergonomic compliance, and liability risks
  • Security, data handling, and audit trail challenges

If the employer cannot control the home environment without significant investment, this is a valid, legally defensible ground for refusal — especially where the employee resists reasonable structure or compliance.

So, What Do Employers Need To Do?

This is where most get caught out. The refusal itself isn’t the problem — it’s how they get there.

Follow Section 65A — In Full

You must:

  • Consult meaningfully
  • Consider personal impact
  • Respond in writing within 21 days
  • Include:

Miss one element? You’ve failed to refuse lawfully.

Use Policy as Structure — Not Defence

Policy isn’t protection. It’s context. The NES still applies.

Bring Evidence — Not Assumptions

If you can’t back it with operational data, it’s not a “business ground.” It’s an opinion.

Separate Performance from Flexibility

Don’t use performance concerns as a workaround unless they’re:

  • Documented
  • Relevant to the request
  • Managed via proper channels

Otherwise, you weaken both arguments.

Final Word from The IR Geek

Work from home isn’t a free pass. But neither is the employer’s ability to say no.

You can lawfully refuse — if:

  • You follow process
  • You provide real evidence
  • You show fairness in the handling

This isn’t about being generous. It’s about being legally prepared.

If you can’t evidence your refusal, you’ve got a problem.

Need Support Navigating This?

LevelUp works with employers to:

  • Build compliant WFH response frameworks
  • Draft defensible refusals and agreements
  • Map risk to role design, Awards, and business models

If you’re handling flexible work disputes, planning your hybrid policy, or just want to sleep better at night — we can help.

Visit www.askfrank.com.au or contact the LevelUp team directly.