The times they are changing. Certain classes of employee have had a right for some years now to seek workplace flexibility. However, the ability to work from home (even for a day a week) has traditionally been very much the exception rather than the rule. Of course, everything changed during Covid when businesses had to rapidly adjust to widespread working from home. But there has been a gradual reversal of this practice post covid with many employers seeking to return to the pre covid status quo (or something close to it). It is understandable that there has been resistance by employees. The fact is that there is no existing simple legal right to work from home. Under section 65 of the Fair Work Act 2009 (Cth), full-time and part-time employees can request flexible work arrangements if they’ve worked with the same employer for at least 12 months and they:
- are the parent, or have responsibility for the care, of a child who is school aged or younger;
- are a carer;
- are a person with disability;
- are 55 or older;
- are pregnant;
- are experiencing family and domestic violence; or
- provide care or support to an immediate family or household member who is experiencing family and domestic violence.
This right is subject to legal process however. Flexible working arrangements may include one or more days working from home but it is necessary for an employee to demonstrate why the particular ground requires it. The Fair Work Commission has interpreted section 65 of the Fair Work Act to mean that an employee must demonstrate there is a relationship between the reason a worker is requesting an arrangement (eg to take a child to regular medical appointments) and their eligibility to make the request (because they have the responsibility to care for a child). The Fair Work Commission has said “It is not enough to simply have children and to desire to spend more time with them during the week “ – see Terry Hutchinson v Cleanco Queensland Ltd [2025] FWC 2887 (at paragraph 35).
Whilst the Fair Work Commission can now determine disputes about workplace flexibility the legal process is still daunting for many employees and employers. If no agreement can be reached informally, then the Fair Work Act requires an employee to make a request in writing to their employer setting out the details of the change they are requesting and the reasons for the change. Employers are required to respond in writing within 21 days and either approve or refuse the request, or set out any alternative working arrangements that are agreed with the employee. An employer may only refuse a request if there are reasonable business grounds and they have taken certain steps, including:
- discussing the request with the employee;
- genuinely trying to reach an agreement with the employee for alternative arrangements; and
- considering the consequences for the employee of refusing the request.
If no agreement is reached, then an employee can lodge an application with the Fair Work Commission. The employer will generally be required to lodge a response and then a conciliation conference will be held to see if resolution can be reached by agreement. If not, the application will be scheduled for a hearing and the parties will be required to file statements of evidence and submissions. Witnesses may be cross examined and the Commissioner will ultimately issue a written decision after hearing the evidence. The outcome will depend on the particular circumstances of each case. As a general rule though, flexibility requests should be relevant to the ground of request and, so far as possible, limited in scope. For example, moving interstate so a partner can take up a work opportunity is not a basis for a flexibility request – see Kellie Fitzpatrick v University of New South Wales [2026] FWC 677. Employers also need to consider long and hard why the request cannot be granted and make efforts to reach alternative solutions rather than adopting a policy of blanket refusal. Further guidance can be obtained from the Fair Work Ombudman website.
Apart from the legal process itself, there is also a traditional industrial law obstacle to flexibility with many awards strictly regulating hours of work and breaks with overtime and penalty rates applying to work outside “normal” hours. The Fair Work Commission is currently reviewing and developing a formal “working from home” term, initially within the Clerks—Private Sector Award 2020 to try and remove or minimise these impediments. However, the union movement is obviously reluctant to lose many of its hard won industrial benefits. The Victorian state government has also announced plans to introduce legislation to come into effect on 1 September 2026 to give employees a right to work from home for two days per week (although there may be potential constitutional law challenges). At this stage, it is the only state or territory planning to introduce this type of working-from-home measure. Federally, the Greens are pushing for a broader right to work remotely for at least two days a week through a senate inquiry.
Work from home also raises potential work health and safety issues and employers must take steps to ensure that the home work environment is safe. For example, does the employee have an ergonomic workstation set up, and is there sufficient ventilation and lighting? There have been instances where a fall down stairs whilst working from home have resulted in workers compensation claims. Some employers may also wish to monitor the work of employees to ensure they are productive and abiding by work from home requirements. Ultimately, it is likely that the expansion of work from home arrangements will largely be an economic issue governed by the laws of supply and demand for productive labour. The working population is aging, younger generations feel less bound to a particular employer and there is greater reliance on employees with demands outside work. Over time, working from home probably will become a right, and the law will catch up, but not just yet.
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