Over 55 and Tired of the Commute? The FWC Just Ordered a University to Allow a WFH Day (Duffy v Victoria University)

Michele Duffy, 63, is a full-time student advisor at Victoria University. For about a year she had been taking one day of long service leave each week, usually a Wednesday, to cut down on commuting. In June 2025, with that leave running out, she asked to work from home two days a week. Her request relied on the flexible working arrangements right in the Fair Work Act for employees aged 55 or older: "As a worker aged 55 or older, this arrangement would help reduce physical fatigue associated with commuting and support my continued productivity and wellbeing."

The university refused the two days and offered a trial of one day. It questioned whether the commute was really fatiguing and asked for medical evidence, which was not produced until the matter reached the Fair Work Commission. Ms Duffy took the dispute to the Commission.

Commissioner Oanh Thi Tran found two things:

• Ms Duffy did not need a medical reason. The Commissioner was satisfied she "experiences fatigue from commuting, which she experiences as a worker over the age of 55, and the proposed arrangement addresses those circumstances", adding: "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."
• The university still had a reasonable business ground to refuse two days. Student advisors need to be available for walk-in enquiries. "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," the Commissioner said.

The order: Victoria University must allow Ms Duffy to work from home one day a week. The parties are to trial Wednesdays for at least six months, then consult and genuinely try to agree on which day becomes the permanent WFH day. The arrangement stays in place until the parties agree to change it. Sources: Information Age (ACS), 13 October 2026; The Senior, 12 October 2026. A neutral citation for the decision had not been published on the Commission's decisions database when this article was written; we will add it when it appears.

Section 65 of the Fair Work Act gives employees the right to request a change in working arrangements if they have 12 months' service (or are a regular casual with a reasonable expectation of continuing work) and one of the circumstances in s 65(1A) applies. Being 55 or older is one of those circumstances, alongside pregnancy, caring for a school-age or younger child, being a carer, having a disability, and experiencing or supporting someone through family and domestic violence.

What this decision adds is a clear statement that the over-55 category does not require a medical condition. The employee has to show a connection between being 55 or older and the change they are asking for. Commuting fatigue, for an older worker, was enough. UTS employment law academic Giuseppe Carabetta told The Senior the decision "reinforces that workers over 55 do not need to demonstrate a medical condition before seeking flexible work arrangements", but warned there is "no blanket rule": an employer can still refuse on reasonable business grounds, with evidence.

It also shows how the Commission handles a request that is partly reasonable. The two-day request failed on business grounds. The one-day request succeeded because the university itself had offered it, and the Commission turned that offer into an order with a trial period and a consultation step.

Since 6 June 2023 the request process has been enforceable. Under s 65A your employer must:

1. Respond in writing within 21 days, granting the request, agreeing a different change, or refusing.
2. Before refusing, discuss the request with you and genuinely try to reach agreement on a change that accommodates your circumstances.
3. Refuse only on reasonable business grounds, and set out in the written response the grounds, the particular business reasons, any alternative the employer is willing to make, and that you can dispute the refusal.

Reasonable business grounds listed in the Act include that the arrangement would be too costly, that other staff's arrangements cannot practically be changed to accommodate it, that it would be impractical to change other employees' arrangements or recruit new staff, that it would likely result in a significant loss of efficiency or productivity, or that it would likely have a significant negative impact on customer service. The walk-in enquiry point in Ms Duffy's case fell under the service-impact ground.

If your employer refuses, or does not respond within 21 days, you can take the dispute to the Fair Work Commission under s 65B. The Commission will try conciliation first and can then arbitrate and make orders under s 65C, including an order that the employer grant the request or a modified version of it. That is the path Ms Duffy used, and it is the same path that produced the order against Westpac in Chandler v Westpac in 2025. Sources: Fair Work Act 2009, ss 65–65C; Fair Work Ombudsman: flexible working arrangements.

Do	Why
Put it in writing, name the s 65(1A) circumstance, and explain the connection	The Act requires a written request that sets out the change and the reasons. The connection between your circumstance and the change is what the Commission tests.
Ask for what you can justify, and offer a fallback	Ms Duffy's two days failed; one day was ordered. A request with a built-in compromise is harder to refuse outright.
Answer the business concern before it is raised	If the issue is in-person coverage, propose the day with the least walk-in demand, or a roster swap with a colleague.
Keep the 21-day clock	No written response in 21 days is itself something the Commission can deal with.
Provide evidence if asked, but you are not required to prove a medical condition for the over-55 ground	Per this decision. Evidence can still help, and it removes an argument.

Our flexible work request builder drafts the written request with the s 65 elements in the right order, and the flexible work request guide walks through the discussion and refusal stages.

For employers: this decision does not create a right to work from home for anyone over 55. It does mean that asking an older worker for a doctor's certificate before considering commuting fatigue is the wrong first step. Discuss, document the business grounds with evidence, and put any alternative you are willing to offer in the written response. An alternative you offer in writing can become the order, as it did here.