One Minute Summary
- The Applicant, Ms Duffy, is 63 and a full-time Student Advisor at Victoria University. She made a formal request to work from home two days per week due to feeling fatigued from commuting to and from work. The employer asks for medical evidence to support this claim.
- The Commission examines the job closely and accepts the employer’s position that the job role is face to face and mainly deals with walk in students with a range of queries about courses and timetables etc.
- Given the nature of the role the employer believes they have reasonable business grounds to reject the two day per week WFH request.
- The Commission accepts the employer’s view that the job role is largely focussed on walk in students and that the employer therefore has reasonable business grounds to reject the application.
- However, regardless of this the Commission agrees to grant the applicant one day a week WFH. If agreement is not reached the default will be Wednesday.
Ms Duffy, 63, commenced working for Victoria University in 2008 as a full-time Student Advisor. The role of a student advisor at a university is quite varied (enrolments, course choice or changes, timetables etc) but they mainly deal with walk in students at a university campus who have a query or a problem to resolve. While a small part of the role, such as student progress meetings, can be undertaken remotely and may involve telephone or video based meetings most issues are resolved face to face.
Ms Duffy had been taking off each Wednesdays for about a year gradually utilising her long service leave before making a formal request to work from home for two days per week. The grounds for the request were as follows - ‘As a worker aged 55 or older, this arrangement would help reduce physical fatigue associated with commuting and support my continued productivity and wellbeing.’
She stated that a number of her routine tasks such as the video meetings, email enquiries and processing extension requests, were suited to remote work. She also stated that during peak periods she would be available to work four or five days per week on site. This would be at the start of the academic year or just prior to a semester resuming.
The University took some time to respond, asking Ms Duffy for medical evidence, and then proposing a fortnightly or monthly RDO. This was rejected by Ms Duffy.
On 14 August 2025, well after the 21-day response time required in the Fair Work Act, the University formally declined Ms Duffy’s flexibility request citing business reasons. The business reasons rested on the fact that the role of a Student Advisor was in person at the campus where almost all enquires were face to face by walk in students. At one point the University proposed that Ms Duffy work from home on Fridays for a trial period as this day was the quietest day for students’ enquiries.
However, Ms Duffy did not accept this outcome and applied to the Fair Work Commission on 21 November seeking to work from home on two days per week. The matter was initially listed for conciliation, but a resolution was not reached. It was formally heard in arbitration on 11 March 2026 with a decision issued on 6 October 2026.
The decision analysed the legislation and several prior Full Bench test case decisions. The key sticking point between the two parties was a sufficient connection between being over the age of 55 and needing to work from home. The reason Ms Duffy had provided was that 5 days of commuting resulted in fatigue. The University had asked for medical evidence as it was not satisfied that Ms Duffy experienced age related fatigue. The Fair Work Act does not require an employee to provide medical evidence to support a flexible work request.
In the decision Commissioner Tran discussed the nexus between being 55 and the request to work from home for two days per week. Commission Tran stated:
‘But I am satisfied that Ms Duffy did make the requisite connection when she made her request. At the time of her request, she explained what her circumstances were, what her request was and that the requested arrangements would help her to reduce fatigue and support her continued productivity.’
‘I do not consider that it was necessary for Ms Duffy to establish that there was a medical reason to support her request, only that there was a connection between the circumstances of being a worker over the age of 55 and the request.’
‘I am satisfied based on Ms Duffy’s evidence, including her oral evidence at the hearing, that she experiences fatigue from commuting, which she experiences as a worker over the age of 55, and the proposed arrangement addresses those circumstances.’
Ms Duffy’s representative stated the University could not reject her flexibility request because it did not have reasonable business grounds as required under the Act.
However, the Commission accepted the University’s position that the role of a Student Advisor was an onsite student ‘walk-in’ role and that the University therefore had reasonable business grounds to reject the working from home request. The Commission examined her position description in detail (which was not in dispute) and stated:‘I am satisfied that it is a reasonable business ground to consider the purpose of a role and the preference for staff to be available for in-person enquiries.’
Ms Duffy stated that the University had not considered the impact of denying her request. While no formal discussion took place between the University and Ms Duffy concerning the impact of refusing her request, the Commission accepted evidence from its HR Business Partner that this had been considered.
However, while the Commissioner determined that the University did have reasonable business grounds to reject the working from home request, as sought by Ms Duffy, the Commission was still able to ignore this and make a decision under S.65C(3).
This section states: ‘The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.’
The Decision states as follows:
‘I consider that it is reasonable and fair in all the circumstances to order that the University implement its alternative proposal of Ms Duffy working from home one day per week. While the University has proposed Fridays, my recommendation is that for a 6-month period, the parties confer with a view to agreeing about the trial work from home day. Failing agreement, I recommend that Wednesdays be the one day per week that Ms Duffy works from home. Ms Duffy gave evidence that she was prepared to be flexible about which days she would work from home, as well as prepared to accommodate the employer’s needs during peak periods by working 5 days per week at City Tower’
Commentary
So while the Decision closely examined the job role of a Student Advisor, and accepted the University’s evidence about the nature of student walk in enquiries, it decided to grant Ms Duffy’s working from home request at one day per week.
The Decision stated that Wednesday would be the default WFH day if agreement was not reached. This is despite Ms Duffy having previously stated she would be prepared to be flexible regarding which days she would work from home.
Where does this leave employers’ where the role is required to be undertaken on site?
Firstly, if the role can be undertaken from home, and the request complies with the legislation parameters, there appears to be little defence open to employers. The Fair Work decisions ‘generally’ appear to indicate a preference for allowing two days per week working from home although this is not a hard and fast rule.
If the employer thinks they can stop a claim with reasonable business grounds – think again. It was very clear from the decision that the vast majority of tasks undertake by this position were driven by walk in students. Perhaps technology will provide a useful solution through constant video interaction.
Another interesting clarification for employers is the acceptance of this WFH claim of fatigue from commuting in relation to employees being 55 years of age or older. The connection appears quite simple and untested.
Employers seeking assistance with working from home or flexibility claims should contact Hunter Employee Relations.
Kind Regards
Michael Schmidt
M 0438 129 728
www.hunteremployeerelations.com.au
Guiding senior managers through complex employee relations issues
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