The law provides a right to make a properly grounded request to work from home, a right to genuine consideration and, where necessary, access to an independent umpire, writes Dr Giuseppe Carabetta.
DOES AN EMPLOYEE aged 55 or older have a legal right to work from home?
A recent Fair Work Commission decision, Michele Duffy v Victoria University, provides the clearest answer so far: not exactly. But eligible workers have more than a merely symbolic right to ask.
Under the Fair Work Act, employees can request changes to their hours, work patterns or location if they satisfy minimum service requirements and the request relates to a specified circumstance.
These include pregnancy, disability, being 55 or older, caring for a young child, carer status, and experiencing or supporting someone experiencing family and domestic violence Fair Work Act, s 65(1A).
The request must be in writing, identify the change sought and explain its connection to the employee’s circumstances.
An employer must respond within 21 days.
It may refuse only after discussing the request, genuinely trying to reach agreement, considering the consequences of refusal and identifying reasonable business grounds Fair Work Act, s 65A(3).
These can include cost, impracticality, significant productivity losses or adverse effects on customer service Fair Work Act, s 65A(5).
What happened in Duffy?
Michele Duffy, a full-time student adviser at Victoria University, requested two work-from-home days each week. She was over 55 and said commuting caused physical fatigue, while remote work would support her productivity and wellbeing.
The university questioned whether her request was sufficiently connected to her age and sought medical evidence. It also argued her student-facing role required staff to be available for in-person enquiries.
Commissioner Tran accepted Ms Duffy’s evidence that she experienced commuting fatigue as a worker over 55 and that working from home addressed that circumstance.
Crucially, Duffy did not have to prove that she had a separate medical condition. Being “55 or over” was the protected circumstance she relied on.
But that did not entitle her to the precise arrangement she requested. The Commission accepted that the university had reasonable business grounds for refusing two remote-working days because of the purpose of Duffy’s role and the preference for in-person student services.
Rather than simply choosing between the parties’ positions, the Commission ordered a narrower arrangement: Duffy would work from home on Wednesdays for at least six months. The parties must then consult and genuinely try to agree on the continuing arrangement.
This largely reflected a trial the university had itself proposed during the dispute.
Age is not just a gateway
Duffy develops two earlier cases involving employees over 55.
In Farquarson v CCL Label Australia, an employee sought to compress her full-time hours into four days.
The employer argued the arrangement was motivated by her preferred lifestyle, including volunteer ambulance work, rather than her age.
The Commission rejected the argument that the request therefore fell outside the legislation, finding that the change had been sought “because of” her protected circumstance of age.
By contrast, in Deborah Lloyd v Australia and New Zealand Banking Group Limited, a 62-year-old employee’s request to work entirely from home failed.
Merely stating that she was over 55 did not establish the necessary connection between age and the requested arrangement. The Commission also accepted that ANZ had reasonable business grounds for requiring office attendance.
Together, the decisions show that age is neither a password unlocking flexibility nor an empty eligibility test.
As with earlier flexible work arrangement cases based on different protected circumstances, employees should identify a concrete age-related circumstance and explain how the proposed arrangement responds to it.
Commuting fatigue may be enough when supported by credible evidence, even without medical proof. A preference for working from home, without more, may not be.
The wider lesson
Other flexible work decisions point in the same direction. Employers cannot simply rely on slogans about collaboration, culture or productivity. They must explain how the requested arrangement affects the particular role and substantiate their concerns.
Employees, meanwhile, must make a formal request, identify a protected circumstance and clearly establish the “nexus” between that circumstance and the flexibility sought, as discussed by Carabetta and Hinderling.
Duffy also illustrates the importance of compromise. A trial arrangement allows an employer’s concerns about service delivery or productivity to be tested rather than assumed. It may also help retain experienced older workers whose difficulty lies not in performing their jobs, but in sustaining the commute.
This matters as Australians are encouraged to remain in paid work longer. Flexibility can preserve experience and institutional knowledge.
But there is a potential tension: protections designed to retain existing older employees must not encourage employers to view prospective older workers as less attractive. Decisions about recruitment should remain based on capability and the genuine requirements of the role, not assumptions about future requests.
There is still no general federal right to work from home.
The Commission’s new work-from-home term for the Clerks Award is facilitative and depends on employer agreement, rather than establishing a broad right to remote work.
Victoria’s more ambitious proposal would go further, creating a statutory right to work from home for up to two days a week where reasonable, rather than simply a right to request flexible work. But it has not yet become law.
For workers over 55, therefore, Duffy is an important, but qualified, win. The law provides a right to make a properly grounded request, a right to genuine consideration and, where necessary, access to an independent umpire.
It does not provide an automatic right to work from home on an employee’s preferred terms.
Dr Giuseppe Carabetta is Associate Professor of Workplace and Business Law at UTS Business School. He researches employment law, workplace dispute resolution and sports law.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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