Fair Work Commission has seriously overreached on absurd Westpac work-from-home ruling

A controversial ruling by the Fair Work Commission could pave the way for some employees to obtain the right to work permanently from home and has potential to overwhelmingly favour the personal circumstances of workers over business needs.

A Westpac employee who bought a home 80 kilometres from Sydney to be closer to the private school she preferred for her children on Monday won the right to work entirely from home to make school pick-ups and drop-offs easier for her.

A Westpac employee launched a challenge under the Fair Work Act’s flexible work rights.Credit: Sydney Morning Herald

Four years ago, the woman moved south with her family to Wilton and, further away from Westpac offices, took two hours to travel from school to office. Last January, after Westpac terminated her work from home arrangements in keeping with its hybrid work policy, she launched a challenge to the bank under the Fair Work Act’s flexible work rights, available to employees including parents of school-aged children and people over 55 years of age.

Commission deputy president Tom Roberts ruled in the employee’s favour despite acknowledging her need to work from home arose at least partially from her personal preferences. “While I accept Westpac may obtain some benefit from minimal levels of in-office attendance in [the employee’s] case, I also think the consequences of not making an order are seriously prejudicial for the [employee] and her family,” the deputy president said.

Working from home is one of the significant changes flowing from the COVID-19 years. While considerable benefits are claimed, including reduced commuting and increased productivity, there are also downsides. It is a new Australian workplace phenomenon that has certainly polarised opinion.

Corporate Australia is gradually coming on board, but perhaps reflecting earlier business attitudes to working from home, former opposition leader Peter Dutton came a-cropper when he promised to dump home working arrangements for public servants, and was quickly forced to dump the policy as a “mistake” during the election campaign. And while Premier Chris Minns has stood firm, ordering NSW public sector workers to increase their in-office attendance in August last year, his Victorian counterpart, Jacinta Allan, is pushing for a two-day guarantee to make working from home a right for both public and private sector workers.

Meanwhile, some regard working from home as a sort of panacea and the Fair Work ruling will undoubtedly be adopted as part of the playbook of people who want coverage extended to many other workers.

The Fair Work Commission’s absurd ruling on the Westpac worker, predicated on the bank allowing the woman to work remotely for the four years since she bought her new house, is a blinkered finding that ignores the reality that very few, if any, major Australian employers publicly called an end to WFH when the coronavirus threat receded.

Working from home has advantages and disadvantages, promoters and detractors. Workers’ rights need to be protected, just as employers have a right to see their workers. We do not argue working from home should not exist, but Fair Work Australia has seriously overreached.

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