WFH Hype vs. Hard Law: What the Westpac Case Actually Says

Case: Karlene Chandler v Westpac Banking Corporation (C2025/5698) Published by Justin@ LevelUp | www.askfrank.com.au

Let’s start here—headlines don’t always match the judgment.

The Fair Work Commission’s decision in the Westpac WFH case has generated a lot of noise. Some are calling it a game-changer for flexible work. But the truth? It’s not a new precedent—it’s a procedural cautionary tale.

Yes, the employee won. But not because the law changed. Westpac lost because they didn’t follow the steps that have been baked into the Fair Work Act for years.

This case is a reminder: process matters. Especially when refusing flexible work.

The Facts

• Ms Chandler had been working remotely for years—no performance issues, strong ratings.
• She formally requested to keep working from home to manage school pickups/drop-offs for her twin daughters.
• Westpac refused the request—late, vaguely, and without proper discussion.

Where Westpac Went Wrong

Under section 65A(3) of the Fair Work Act, an employer can only refuse a flexible work request if they:

1. Discuss the request with the employee
2. Genuinely try to reach agreement
3. Consider the consequences of a refusal
4. Have reasonable business grounds

Westpac fell short on all four.

The refusal was rushed, lacked explanation, and made minimal effort to engage. Most importantly, it didn’t deal with the actual performance evidence—which showed Ms Chandler was thriving under remote arrangements.

The Business Grounds Argument? Weak.

Westpac pointed to its internal hybrid work policy and vague concerns around collaboration, mentoring, and customer service.

But:

• There was no evidence of performance decline.
• Team communication already occurred online.
• Mentoring and collaboration happened virtually—and effectively.
• No attempt was made to quantify any loss.

The Commission wasn’t convinced. The employee had a clear track record of high performance while working remotely. That made the business case for refusal shaky at best.

The EBA Defence? Didn’t Fly.

Westpac also argued the employee’s request conflicted with its Enterprise Agreement 2025, specifically clauses about hybrid work (Clause 19).

But the Commission made it clear:

• Clause 20 of the EBA refers explicitly to flexible working arrangements under the NES.
• Clause 48.2 confirms the EBA cannot override NES rights.
• The two processes (hybrid work policy vs. formal FWA under the NES) are separate.

In short: an internal policy or EBA clause can’t shut down an NES-backed request.

What Frank Says

“This case isn’t about rewriting the law. It’s about reminding employers that if you want to say ‘no,’ you have to follow the how.

What This Means for Employers

If you want to say “no,” you can—but only if you’ve:

• Had a genuine discussion with the employee
• Considered the consequences of the refusal on their personal circumstances
• Tried to reach agreement, not just imposed a decision
• Given a timely, written response that sets out

If you don’t? You’re exposed. And the Commission can order the request to be granted—even over internal policies or agreements.

Final Word from The IR Geek

This wasn’t a revolution. It was a reality check. The Fair Work Commission didn’t create new rights—they enforced existing ones.

The lesson for employers? Follow the process. Document the engagement. Back your reasons with real evidence.

Because in 2025, “we have a policy” is not a valid answer. And it definitely won’t stand up in arbitration.

Need help getting this right?

If you’re handling flexible work requests, disputes, or need to review your current procedures to stay compliant—LevelUp is here to help. We translate risk into strategy, and legal complexity into plain English.

Get in touch with Frank or the LevelUp team for tailored advice and support. 👉 www.askfrank.com.au