What Irish employers can learn from Australia’s landmark remote working case

The Australian national workplace tribunal (equivalent to the Irish Workplace Relations Commission) recently made orders that an employer accommodate an employee’s request to perform her work completely remotely.  This landmark case has drawn interest from other jurisdictions, including Ireland where there exist similar rights for employees to request remote working and flexible working arrangements.  In this article, we summarise the Australian decision, consider comparable rights to request remote or flexible working in Ireland and make some practical recommendations for Irish employers responding to requests for remote or flexible working arrangements.

The Australian case of Karlene Chandler v Westpac Banking Corporation [2025] 

Factual background

The Australian case (“Westpac Case”) involved a request for flexible working arrangements made by an employee, Ms Chandler, to her employer, Westpac, which is one of Australia’s big four banks.

Ms Chandler first requested that she be permitted to work entirely remotely from her home (“Initial Request”), rather than attend a Westpac corporate office two days per week, as required by the company-wide policy (“Policy”).  When Ms Chandler’s Initial Request was refused, Ms Chandler proposed an alternative arrangement, to work two days per week from a local Westpac branch outside of Sydney (“Alternative Request”), rather than attend the closest corporate office in Sydney (“Corporate Office”). The basis of her requests was to enable her to care for and attend to school pick-ups and drop-offs for her two six-year-old children.

For context, Ms Chandler had been employed with Westpac for over 20 years.  At the time she commenced employment, her role was to be performed on a permanent basis from the Corporate Office.  Since then, Ms Chandler had a history of working remotely – either completely or less than the two days per week required by the Policy (e.g. one day per week during one period and one day per month, for a separate period).

At the time of the requests, Ms Chandler’s closest corporate office was in Sydney, and it took approximately two hours to travel from the school of Ms Chandler’s children to the Corporate Office.  Of note, the children’s school was a private school approximately 25-30 minutes away from the family home, in the opposite direction to the Corporate Office.

On 17 January 2025, Ms Chandler made a formal request for flexible working arrangements, pursuant to the Fair Work Act 2009 (Cth) (“Australian Act”) – this was the Initial Request.  Ms Chandler’s Team Leader advised her on 18 March 2025 (which was more than 21 days after the Initial Request) that her request had been refused, without providing reasons.  The following day, on 19 March 2025, Ms Chandler was sent an email which referred to the Policy and said, “working from home is no substitution for childcare” and “your arrangements for working remotely may change at any time at Westpac’s discretion”.  Westpac later agreed that Ms Chandler would undertake a phased return to work two days per week at the Corporate Office by January 2026.

Decision

The FWC made orders that the Initial Request be accommodated including on the basis that (1) Westpac failed to establish business grounds for refusing the requests, and that (2) making such orders would be fair in the circumstances (detailed below).

Whilst not fatal to Westpac’s case, the FWC also took into account in its decision that Westpac had not complied with some of the formal requirements of the Australian Act – to discuss the request  with Ms Chandler to try and reach agreement, to consider the impact of the refusal on Ms Chandler, to respond to the request within 21 days with reasons and with any changes Westpac was willing to make to the proposed arrangements.  We note this as it is relevant to Irish employers, as discussed below.

(1) No business grounds for the refusal

In relation to business grounds, Westpac submitted that the Policy was a measured approach that provided a mixture of in-person and remote work and the application of the Policy was an effective way of manging the issue amongst a very large workforce – notwithstanding the Policy provided for some exceptions to its application (i.e. it was not a ‘blanket rule’).  In relation to the Policy and the Alternative Request, Ms Chandler pointed to the fact the policy specifically contemplated working at a branch as an alternative to attending a corporate office.

Westpac also submitted that there were benefits of requiring some in-person attendance.  Those benefits included collaboration with Ms Chandler’s immediate team, meaningful engagement with stakeholders across the business, access to team ‘huddles’, training activities and bulletin boards (which were not accessible remotely), the ability for teams to work with greater effectiveness with a certain level of face-to-face interaction and the ability for Ms Chandler to provide mentorship.

Ms Chandler made a number of submissions in response, many of which were accepted by the FWC.  Ms Chandler submitted and it was accepted that her team was constructed in such a way that face-to-face contact was not an ordinary part of the job, given team members were located in different States of Australia, meaning they worked remotely and flexibly.  In particular, the FWC found that there was no question that Ms Chandler could perform her work completely remotely, given she had done so previously.  Further, the FWC acknowledged that the performance of both the team and Ms Chandler were very high.  It was accepted that team ‘huddles’ and training could be conducted online.  Ms Chandler provided evidence that she had not provided mentorship since 2022, and had demonstrated an ability to do so remotely having mentored two new hires completely remotely during Covid-19.

Whilst it was conceded that teams are able to work more effectively with a certain level of face-to-face interaction, the FWC found that it was a submission made by Westpac in generalised terms and without specific examples.

(2) Fairness between the parties

Westpac also made submissions that making the orders sought by Ms Chandler would be unfair including because:

• it would undermine the ability of Westpac to insist on compliance with the company-wide Policy by other employees;
• the present circumstances of Ms Chandler arose from her personal life choices, such as the location of the family home and the school chosen for her children; and
• the financial position of the family was improving to the point that it was not unfair for the cost of childcare to be borne by Ms Chandler, rather than requiring Westpac to make an exception to its Policy.

In relation to fairness, Ms Chandler successfully submitted that there would be no detriment to Westpac to accepting her Initial Request given the team was constructed across States and operated effectively.  By contrast, she would suffer significant personal prejudice if her requests were refused.

Whilst the FWC found that Westpac may obtain some benefit from minimal levels of in-office attendance, it found that fairness considerations weighed in favour of making the order sought by Ms Chandler.

Right to request remote working and flexible working arrangements in Ireland

Similarly to in Australia, employees in Ireland may make a request for remote working arrangements (under Part 3 of the Work Life Balance and Miscellaneous Provisions Act, 2023 “2023 Act”) or a request for flexible working arrangement (under Part 2 of the 2023 Act, which amends the Parental Leave Act, 1998) (together, “Requests”). Employees must have at least 6 months’ employment before a requested arrangement may start (although they may make a Request during the first 6 months of employment).

In addition, employees may only make a request for flexible working arrangements if the request is (in summary) to provide care for their child or to provide a family or household member in need of significant care or support.

How employees can make a Request

Eligible employees must make a Request in writing to their employer at least 8 weeks before the proposed start date of the arrangement.  The Request must be signed by the employee and specify the details/form of the requested arrangement, the proposed date of commencement of the arrangement and its duration.  The employer may also request further information from the employee if reasonably required.

In relation specifically to requests for flexible working arrangements, the form of the request may be part-time work, term-time work, job-sharing, flexitime, compressed working hours and remote working (detailed on page 7 of the Code of Practice).

How employers must respond to a Request

If a Request is made by an eligible employee and in the prescribed form, employers must consider and respond as soon as is reasonably practicable and within 4 weeks of the Request. 

If the employer approves the Request, the parties must enter a written agreement to formalise the terms of the arrangement, of which the employer must retain a copy and provide a copy to the employee. If the employer refuses the Request, it may only do so in accordance with its own business needs and those of the employee, and must notify the employee in writing, with reasons for the refusal.

The Code of Practice helpfully sets out best practice for employers responding to a Request (see page 17).

Referral of a breach to the WRC

An employee may refer to the WRC a breach by the employer of its obligations to consider and respond to a Request in accordance with the 2023 Act.  However, unlike the FWC in Australia, the redress available to the WRC in Ireland is limited to making orders that the employer complies with these obligations and/or for financial compensation.  Importantly, the WRC cannot make orders for the employer to agree to a Request.

Learnings from the Westpac Case

Whilst not directly applicable, the Westpac Case highlights some key learnings for Irish employers, with learnings 1 to 6 focusing on responding to a Request and more general learnings at 7 and 8.  Employers should consider these in addition to following best practice set out in the Code of Practice.

Learning 1: Strictly comply with the formal requirements

It is not unusual for employers to be somewhat complacent when it comes to compliance with the formal requirements of responding to requests.  However, the Westpac Case highlights the importance of strict compliance with the formal requirements of responding in writing with reasons as soon as practicable and at least within 4 weeks of the Request.  Particularly, it would not be compliant to advise the employee of the response verbally first before then responding in writing (as was the case in the Westpac Case). It is also unlikely to be sufficient to simply refer to a policy as reasons for a refusal.

Learning 2: Be wary of taking a ‘one-size-fits-all’ approach

The Westpac Case reminds employers that they should be mindful that a general explanation about the benefits of face-to-face team engagement and of working in the office may not be acceptable as a basis for refusing a request.  Instead, and as submitted by Ms Chandler in the Westpac Case, examples specific to the employee should be provided to justify a refusal, including the specific benefits of the employee attending work.

Similarly, employers should avoid explaining a refusal simply by referring the employee to a remote / flexible working policy and the need for its consistent application.

Learning 3: Be mindful of present or past working arrangements

An employer should consider whether an employee has previously worked remotely or flexibly, as well as the current practices of the employee’s team, whether they generally work remotely or together in the office. It will be more difficult to justify refusing a Request if such previous or current arrangements exist(ed) and were / have not been detrimental to the employer. 

Learning 4: Thoroughly assess alternatives

Employers should consider what arrangements they may be willing to accommodate and propose / discuss them with the employee. This should be a thorough exercise, which may practically involve listing all possible alternatives and working through each of them to determine whether they meet the employee’s and the business’ needs before then putting them to the employee for consideration.

Learning 5: Consider the impact on the employee 

Irish employers are required pursuant to the 2023 Act to consider the needs of the employee when responding to a request.  In doing so and as was the case in the Westpac Case, it is best practice to consider the impact of a refusal on the employee and any prejudice to them, as balanced against the impact on the operation of the employer’s business.

Learning 6: Assign limited weight to the employee’s personal choices

Some commentators have criticised the FWC’s decision in the Westpac Case particularly given the circumstances resulted from the employee’s choice to live outside the city (where she moved during Covid-19) at a significant distance from the Corporate Office and for her children to attend a private school, in the opposite direction of the Corporate Office. However, employers should be mindful of placing too much emphasis on this aspect.

Learning 7: Document the steps taken in responding to a Request

Steps taken to respond to a request should be documented, for example, in a file note of any meetings with the employee, in email to the employee and/or in any internal documents.  It may assist to have an internal checklist for management or the HR team to follow when responding to a request, notwithstanding it would act only as a support and employers should meaningfully engage with any request.

Learning 8: Review the company policy

In the Westpac Case, Ms Chandler made the Alternative Request on the basis that the Policy contemplated that an employee could attend a local branch, rather than the nearest corporate office.  Employers should review their policies to ensure that anything that is contemplated as an alternative to working from the office is genuine, as it may be the subject of a Request, which may be more difficult to refuse.

More broadly, the Code of Practice (from page 23) provides an overview of what should be included in a policy dealing with remote working or flexible working requests).

The RDJ Employment Team is available to provide expert advice in this regard should you have any questions.