Work From Home Is Here to Stay. Is Your Business Ready?

If it feels like flexible work and work-from-home (WFH) requests have become a bigger part of your week than they used to, you’re not imagining it. WFH is now a permanent feature of Australia’s employment landscape, with many Australians working from home at varying frequencies. For civil, construction and building businesses, where site attendance is often non-negotiable, yet back-office, estimating, scheduling and project support roles increasingly are not, this article is worth a read.

The Fair Work Commission continues to provide guidance through its decisions as to what to do and (perhaps more critically) what not to do when responding to flexibility requests. Although most flexibility applications are resolved or discontinued at conciliation, for the small number that do escalate to hearing, the outcome comes down almost entirely to one thing: whether the employer had a robust process and followed it. For example:

• A mortgage operations employee won her WFH arrangement after her employer skipped consultation, failed to outline business grounds, and relied on a generic “face-to-face is better” claim that didn’t hold up against her strong remote performance.
• After genuine attempts at compromise and outlining well-documented compliance requirements, a childcare provider successfully defended a flexibility request by an employee that would have breached staffing ratios.
• Two employers won reduced-WFH-day disputes by citing specific, tangible needs: uninterrupted focus for complex processing work, and hands-on mentoring for a senior role, rather than general preference.

The common thread is that blanket policies and generic assertions are unlikely to hold up, however a considered, well-documented, role-specific response does.

That raises 2 questions for any business juggling site-based and office-based teams:

• Do you have a policy and a process for effective handling of WFH/flexibility requests?
• Do your managers know when is appropriate to push back with genuine, documented business grounds versus knowing when to offer a trial period or partial compromise?

Victoria’s new right to work from home

In a further development, Victoria is moving to introduce its own stand-alone right to WFH, which will operate in addition to the existing flexibility rights available to employees under the Fair Work Act. This new WFH right:

• is considerably broader than the Fair Work Act flexibility right, being open to any eligible employee, regardless of personal circumstances.
• entitles full-time employees up to 2 days a week at home, subject to an employer-applied “reasonableness” test.
• is positioned within equal-opportunity law rather than industrial/employment laws.

Since Victorian employees may be eligible for either the Fair Work Act flexibility request or the new state right, employers will need to be prepared to respond to requests from both regimes, noting differences in eligibility tests, timeframes, and dispute pathways. The new Victorian WFH right is set to commence on 1 September 2026 for employers with 15 or more employees, and on 1 July 2027 for smaller employers.

As flexibility and WFH requests continue to gain momentum and with Victoria’s new WFH right on the horizon, now is an opportune time to consider your organisation’s readiness to respond.

For advice on how this applies to your business, contact the Drayton’s team.