Older workers who may experience fatigue due to commuting to and from the office may be more likely to be able to work remotely, according to a recent Fair Work Commission (FWC) ruling.

The commission recently heard a case brought by a full-time student advisor at Victoria University, who was pushing to work from home two days per week to help reduce physical fatigue associated with commuting.

The FWC found that this argument did have some validity, and eventually ordered a compromise which will see the university employee working one day per week from home instead.

Michele Duffy is employed as a full-time student advisor by Victoria University, but for the previous 12 months had been taking one day of long service leave each week, typically on a Wednesday.

Her role involved responding to enquiries from university students, which was performed online and face-to-face.

In June last year she requested two days per week working from home, as her long service leave was coming to an end.

“As a worker aged 55 or older, this arrangement would help reduce physical fatigue associated with commuting and support my continued productivity and wellbeing,” Duffy’s request said.

Under federal legislation, a worker can request flexible work if they are a parent or carer, a person with a disability, 55 years or older, pregnant, or experiencing family or domestic violence.

Duffy’s request was rejected by Victoria University, and she was instead offered a trial of working one day per week at home.

Uni has ‘reasonable business ground for refusing the request’

Duffy took the case to the FWC, with the sticking point being whether she had properly demonstrated a connection between her personal circumstances and the need to work from home.

Victoria University questioned her claim that the commute was fatiguing, and requested medical evidence for this, which was not provided until the matter was heard by the FWC.

But the commission found Duffy had made a proper connection, and that she does “experience fatigue from commuting, which she experiences as a worker over the age of 55, and the proposed arrangement addresses those circumstances”.

An employer is still legally able to reject a flexible work request if they have reasonable grounds to do so, and the FWC found that Victoria University did due to Duffy’s need to be available to respond to student 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,” Fair Work Commissioner Oanh Thi Tran said in her findings.

“Students may make enquiries in a number of ways: online, email, via telephone or by walking into a student centre.

“While there are tasks that Ms Duffy can perform remotely, and many tasks may be computer-based, I accept that it nevertheless remains a business need for a student advisor to be available to respond to walk-in enquiries and that if a student walks in, other tasks are subsidiary to responding to the student walk-in enquiry.

“As such, I am satisfied that in considering its business need for student advisors to be available to respond to walk-in enquiries the university has a reasonable business ground for refusing the request.”

A compromise

But the commissioner instead opted to order an alternative proposal be implemented which will see Duffy working one day per week from home.

The Victorian government has previously committed to making working from home a legislated right.

It was planning to pass this legislation before the upcoming November election, but the crossbench united to refer it for a hearing, which means it cannot be passed before the election.

The plan would make working from home a protected attribute in anti-discrimination law, and allow workers to request two days from home per week where their duties can reasonably be performed remotely.