Warning: If an employer denies a work from home request, they could be called lawbreakers and face serious consequences.

Every white collar employer has been put on notice that if they deny employees their right to work from home they could be called lawbreakers and could face serious consequences. That’s the sensible conclusion given the recent Westpac case before the Fair Work Commission that has led to the Finance Sector Union putting our big banks, insurers and super funds on notice that rejecting work-from-home (WFH) requests could be dangerous.

In the minds of unions, the state of play between employers and their workers has changed substantially since Covid forced the WFH ‘workplace’ pivot.

FSU national assistant secretary Nicole McPherson was reported by the AFR’s David Marin-Guzman laying down the law to bank employers telling them: “…to get their own house in order … and stop acting like flexibility is a privilege”.

On the Westpac loss in the Fair Work Commission: “This ruling makes clear that employers can’t hide behind buzzwords like ‘collaboration’ or ‘culture’ to deny flexible work,” she said. “Westpac broke the law when it ignored its own workers’ rights and we’re putting every other bank on notice that they can’t do the same.”

So, what do white collar bosses need to know? Here are the sensible conclusions following the FWC ruling and the unions’ expectations:

1. Review all your current flexible WFH arrangements.
2. See if your WFH or your return to office (WFH) could leave you legally exposed.
3. Face-to-face employee collaboration doesn’t wash with the FWC if there are regular zoom or teams meetings with colleagues interstate.
4. WFH requests need to be responded to within 21 days or else the employer would be seen as being unreasonable.
5. Employees who have had WFH arrangements for quite a bit of time have evidence that it has not been a productivity issue for the employer.
6. If an employer sacrificed some productivity advantages for caring reasons for a good employee under stress from a parenting or caring role, then those employers better be able to prove the worker was less efficient when based at home.
7. Not all employees can demand a WFH arrangement as “under the Fair Work Act, flexible work appeals are limited to a cohort of workers such as those over 55, with a disability, parents of school-aged children and carers.”

That last point still covers a lot of employees and could make some employers careful about hiring over 55s and those workers with school age children, especially so if they live a long commuter distance from the workplace.

Westpac is considering appealing the decision that involved their RTO policy of 2 days in the office. The employee at the centre of this FWC case, had been on a WFH deal but wanted it extended when she had “moved house to be closer to a private school for her six-year-old twin daughters,” the AFR reported.

The bottom line is that an employer better be able to prove the employee working from home has a productivity problem or else they could be seen as a workplace lawbreaker. Would that make the employer a criminal? But the serious consequence of the tough stance of the FSU is that employers will need to be careful about who they employ and the WFH deal they say yes to. Will it make Artificial Intelligence options to hiring real people more of a sensible consideration?