By The Fair Work Commission has ordered Victoria University to grant a full-time student advisor one day of work-from-home per week, ruling that the university could not lawfully refuse the request in its entirety, according to HRD America. The worker, aged over 55, had originally requested two remote days per week under section 65 of the Fair Work Act 2009.
The university refused the two-day request after 48 days, past the 21-day statutory deadline, arguing that in-person availability at City Tower, its busiest student service centre, was critical. The Commission found the university had reasonable business grounds to refuse two days, but ordered a compromise of one day per week on Wednesdays, starting October 27, 2026, for a trial period of at least six months.
The legal test the Commission applied
The decision turned on section 65C of the Fair Work Act, which allows the Commission to arbitrate flexible work disputes even where an employer’s refusal was lawful. The Commission ran through five requirements for a valid flexible work request established in the Full Bench decision Quirke v BSR Australia Ltd. Four were uncontested. The contested question was whether the worker had shown a sufficient connection between being over 55 and needing to work from home.
The Commission found that connection existed. Critically, it also found the Act does not require medical evidence to support a flexible work request. Discussions between employer and employee may be enough. The worker had obtained two medical certificates, one in September 2025 and another in January 2026, but only provided them at arbitration. The Commission did not consider them as part of the original request.
This matters for HR teams because it confirms that a request from an eligible employee does not fail simply because no doctor’s certificate accompanies it. The statutory conversation itself can establish the nexus between the employee’s circumstances and the requested arrangement.
What employers should note about process
The university made several procedural missteps that weakened its position. Its initial response on July 17, 2025 did not address the request directly. It asked for medical evidence and proposed a Rostered Day Off cycle as an alternative. A meeting followed on August 7, where the worker explained the link between her age, fatigue and the request, listed tasks she could handle from home, offered flexibility on which days, and said she was willing to come in four or five days a week during peak periods.
The formal refusal came on August 14, 48 days after the original request. The 21-day statutory deadline had already passed. While the Commission ultimately found the refusal was lawful on substantive grounds, the delay and the initial failure to engage directly with the request did not help the university.
The counter-proposal of one work-from-home day on Fridays, on a trial basis until December, came close to what the Commission ultimately ordered. The difference was that the university framed it as a temporary concession rather than a genuine engagement with the worker’s circumstances. By September 2025 the National Tertiary Education Industry Union had stepped in, and negotiations went nowhere. The worker filed her application on November 21, 2025.
What the ruling does and does not change
This decision does not create a general right to work from home. Section 65 of the Fair Work Act gives employees in certain circumstances, including workers aged 55 and over, the right to request flexible working arrangements. Employers can still refuse on reasonable business grounds. The Commission accepted that the core purpose of a student advisor role is to respond to walk-in enquiries, and the worker agreed under cross-examination that if a student walked in, everything else was secondary.
The university argued it would not be financially viable to indefinitely hire casual staff to cover the worker’s remote days. The Commission did not reject that argument outright. What it did was weigh the operational impact of one day against the worker’s circumstances and the months of failed negotiation.
The practical signal for employers is proportionality. A refusal of two days was defensible. A refusal of any flexibility was not, once the Commission had the power to arbitrate under section 65C. The threshold for that power is whether there is no reasonable prospect of the dispute resolving on its own. Months of failed negotiations met that threshold.
Steps for HR teams handling flexible work requests
The case offers a clear sequence for lawful handling of a section 65 request. Respond within 21 days. Address the request directly rather than substituting an alternative without engaging with the employee’s stated circumstances. Document the business grounds for any refusal with specifics, such as walk-in enquiry volumes, staffing ratios and coverage costs. If a compromise is possible, offer it in writing and frame it as a genuine attempt to accommodate the request, not as a temporary trial designed to expire.
The Commission recommended Wednesdays rather than another day, though the reasoning in the source material is incomplete. The parties must trial Wednesdays for at least six months, then consult and genuinely try to agree on a permanent work-from-home day. The arrangement stays in place until they do.
For payroll teams, the ruling has no direct pay implications. The worker remains full-time and the arrangement changes only the location of work on one day. No loading, allowance or penalty rate changes flow from the order itself. Employers should confirm how their own enterprise agreements or awards treat remote work arrangements, as those instruments may contain additional consultation or record-keeping obligations.
The decision is binding on the parties, not a precedent that automatically applies to other employers. But it illustrates how the Commission will approach section 65C arbitration after the Secure Jobs, Better Pay amendments, and it gives HR teams a practical benchmark for what a defensible refusal looks like.
Sources: HRD America
Photo: Remote work - Ergonomia by Claudia Carpinelli, CC BY 4.0
