🧩 When “No” Isn’t Enough: The Westpac Flexible Work Case Every Employer Should Read

In a recent Fair Work Commission decision — Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115 — the Commission sent a clear message to employers:

If you refuse a flexible work request, you must do more than point to policy.

Deputy President Roberts found that Westpac breached the National Employment Standards (NES) by failing to properly handle an employee’s flexible work request under section 65 of the Fair Work Act 2009.

Ms Chandler, a long-serving employee and mother of two, requested to work from home (or locally) to manage school drop-offs and pick-ups. Westpac refused, citing its hybrid work policy — but failed to:

• Discuss the request before deciding,

• Genuinely try to reach agreement, and

• Consider the consequences of refusal for her family.

  
  

The Commission found that Westpac did not meet its obligations under section 65A and that its “reasons” were little more than policy recitations. Because the role had been performed remotely for years without any loss of productivity, there were no reasonable business grounds for the refusal.

🔍 What Section 65 Actually Requires

Under section 65 of the Fair Work Act, certain employees have the legal right to request flexible work arrangements — for example, due to caring responsibilities, disability, pregnancy, age, or family and domestic violence.

To comply, employers must:

1. Receive and acknowledge the written request.

2. Discuss and genuinely try to reach agreement.

3. Consider the impact of refusal on the employee.

4. Only refuse on reasonable business grounds (such as cost, practicality, efficiency, or service impact).

5. Respond in writing within 21 days, with detailed reasoning and alternatives offered.

   
   

Skipping any one of these steps is a breach of the National Employment Standards.

💡 What Compliance Looks Like

Here’s how employers can demonstrate compliance and avoid landing in the Commission’s crosshairs:

✅ Talk first, decide later. Hold a quick discussion within a few days of receiving the request — explore options before deciding.

✅ Quantify the impact. If you plan to refuse, show evidence — cost estimates, roster impacts, or measurable efficiency concerns.

✅ Acknowledge the human element. Document how you considered the employee’s personal circumstances (e.g. caring responsibilities).

✅ Put it in writing. Respond formally within 21 days, explaining your reasoning and offering any alternatives.

✅ Keep records. Store the request, meeting notes, and decision rationale for seven years.

🚫 What Not To Do

• Rely solely on “company policy” or “we need collaboration” without evidence.

• Delay responses beyond 21 days.

• Dismiss requests informally or verbally.

• Ignore the employee’s personal situation.

  
  

⚖️ The Risk of Getting It Wrong

Failing to comply with section 65 can expose your business to:

• Civil penalties under section 44;

• Binding Commission orders forcing you to grant the arrangement; and

• Potential adverse action or discrimination claims.

  
  

In Westpac’s case, the Commission ordered the company to grant the arrangement — a reputational and operational hit that could have been avoided with a compliant process.

🧭 The Takeaway

Flexible work is not a perk — it’s a protected right under the NES. Policy convenience never outweighs legal compliance.

If you’re reviewing a flexible work request and aren’t sure whether your business has reasonable grounds to refuse — it’s worth getting advice first.

👩‍💼 Karen Debono | HR & Workplace Compliance Consultant - Your trusted HR partner

Helping employers stay compliant, practical, and people-centred.

📞 Karen’s HR on 0402104448 or book an appointment with me.