If your commute leaves you worn out before you even sit down at your desk, and you are over 55, a Fair Work Commission (FWC) decision handed down in Michele Duffy v Victoria University is worth reading carefully. The ruling sets the clearest precedent so far on what Australian workers in your position can ask for, what the law requires of your employer, and critically, what you do not need to prove. You do not need a doctor's certificate. Your age, and the physical toll of commuting that comes with it, can stand on their own.

The case, Michele Duffy v Victoria University, does not hand every over-55 worker a guaranteed work-from-home arrangement. What it does is reframe the conversation. Under the Fair Work Act 2009 (FW Act), the weight sits with your employer to justify a refusal on real business grounds, not with you to prove a medical condition. Here is a plain-language breakdown of what was decided, what the law gives you, and how to put a request together that is hard to wave away.

What the Fair Work Commission decided

Michele Duffy was a full-time student adviser at Victoria University, reported to be 63 years old at the time. She put in a written request to work from home two days a week, explaining that commuting caused her physical fatigue and that remote work would support her productivity and general wellbeing. The university pushed back on two fronts: it questioned whether the request was genuinely connected to her age, and it sought medical evidence to support the claim. It also argued that a student-facing advisory role required staff to be physically present for walk-in enquiries.

Commissioner Tran accepted Duffy's account. The finding was that she experienced commuting fatigue as a worker over 55, and that working from home addressed it. Critically, she was not required to produce evidence of a separate diagnosed condition. The link between her age and the fatigue was enough to connect the request to a specified circumstance under the FW Act.

The outcome was a partial win. The FWC accepted that Victoria University had reasonable business grounds to refuse two full remote days a week. The order that followed required Duffy to work from home on Wednesdays for a minimum of six months, with a mandatory consultation between both parties after that period. She had asked for two days; she was granted one. The arrangement largely mirrored a trial the university had itself floated during the dispute.

What the FW Act gives you, and what it does not

Under the Fair Work Act 2009 (FW Act) s 65(1A), workers who have completed the minimum qualifying service period with their employer can request a change to their hours, pattern of work, or work location, if the request connects to a listed circumstance. Being 55 or older is explicitly named in that list, alongside pregnancy, disability, caring for a young child, carer responsibilities, and situations involving family and domestic violence.

The request must be in writing. It needs to describe the change you are seeking and explain the connection to your personal circumstances. Once your employer receives it, they must respond within 21 days. A silence or a brief dismissal does not satisfy that obligation.

Importantly, a flat refusal does not meet the FW Act's requirements either. Under s 65A(3), before declining a request, your employer must:

• discuss the request with you in good faith;
• make a genuine attempt to reach a workable agreement;
• consider what refusing would actually mean for you; and
• have genuine and articulable business grounds for the decision.

Section 65A(5) sets out what can count as reasonable business grounds: the arrangement would be too costly to implement, impractical for the role, likely to cause a significant loss in productivity, or would adversely affect customer service delivery. Before you submit a request, it is worth reading your role through that lens. If your position is genuinely customer-facing or requires physical presence on a regular basis, anticipating that argument in your request will put you in a stronger position.

Three FWC decisions read side by side

Duffy is not an isolated data point. When you read it alongside two other recent Fair Work Commission decisions involving older workers and flexible arrangements, a pattern starts to emerge about where the line sits.

• Duffy v Victoria University: age-related commuting fatigue accepted without any medical evidence. Outcome: one home day per week on a six-month trial, broadly matching the university's own proposed trial. A partial win.
• Farquarson v CCL Label Australia: the FWC found that a request to compress full-time hours into a four-day week was connected to age, even though lifestyle preferences were also part of the picture. Having mixed motives did not defeat the request.
• Lloyd v ANZ: a 62-year-old worker's request to work entirely from home was unsuccessful. The fully remote framing gave ANZ clear grounds to point to business and team-coordination needs.

Dr Giuseppe Carabetta, Associate Professor of Workplace and Business Law at UTS Business School, writing in Independent Australia, described Duffy as the most direct answer to date on whether over-55 workers have a meaningful claim to work from home. His assessment, in short: not an automatic right, but the right to ask carries real procedural weight now. The pattern across these three cases also tells you something practical. Mixed motives are not a problem, as long as age is a genuine part of why you are making the request. Asking for the maximum, however, makes it easier for your employer to demonstrate business grounds for saying no.

How to put a request together that holds up

The Duffy decision points to a practical approach. Think of this the way you would prepare for any important negotiation: specific, grounded in your actual experience, and with a reasonable fallback already on the table.

• Put it in writing and name the circumstance clearly. State that you are 55 or older and that you are making a flexible work request under FW Act s 65(1A) on that basis. Being explicit about the statutory ground you are relying on sets the right frame from the outset.
• Describe the concrete effect on you. Commuting fatigue, reduced energy by the end of a transit-heavy day, recovery time over weekends. The Duffy finding confirms you do not need a diagnosis to draw the connection between these effects and your age.
• Connect it to job performance. Duffy framed remote days around her productivity and wellbeing, not personal preference or convenience. That framing matters: it answers the business-grounds question before it is raised.
• Pre-empt the role-based objection. If your work is partly customer-facing or team-dependent, propose how those needs stay covered: fixed in-office days, rostered presence for peak times, a remote day when demand is demonstrably lower.
• Start modest and propose a trial. One day a week for a defined period is a significantly easier grant than a fully remote arrangement. The Lloyd v ANZ outcome illustrates what happens when the ask gives the employer an easy business-grounds argument.
• Keep a clear record. Note the date you submitted the request, save any acknowledgements, and track whether you receive a written response within the 21-day window required under the FW Act.

If your employer says no

A refusal is not automatically the end of the road. The first thing to check is whether your employer actually went through the steps that s 65A(3) requires: a real discussion with you, a genuine attempt to find an agreement, consideration of what refusing means for your situation, and a clear statement of the business grounds. If any of those steps are absent, the refusal may not be legally compliant. Disputes of this kind can be referred to the Fair Work Commission for conciliation or determination, which is exactly the path Michele Duffy took. The Fair Work Ombudsman (FWO) also provides guidance on the flexible work request process and can advise you on whether an employer's response meets its obligations.

Keep your expectations calibrated, though. There is no general federal right to work from home in Australia. The new work-from-home term inserted into the Clerks Award by the FWC is described as facilitative, meaning it depends on the employer agreeing rather than conferring an enforceable entitlement. Victoria's state government has proposed legislation that would create a statutory right to work from home for up to two days a week where reasonable, but as of October 2026 that proposal has not been enacted and press reporting has described the bill as stalled.

If you are currently in the job market rather than negotiating with an existing employer, the same logic applies at the offer stage. Ask during the interview process how the organisation typically handles flexible work requests under the FW Act, and check employer reviews on platforms like wherewework to see whether current and former staff describe remote arrangements as genuinely negotiable or effectively off the table.

The practical shift the Duffy decision creates

The Duffy v Victoria University decision will not convert every over-55 flexible work request into an approval. The FWC's finding is more targeted than that. What it establishes is a shift in where the burden sits: your age-related reason, whether it is commuting fatigue, recovery time, or physical strain, stands on its own without a medical certificate to prop it up. The employer then needs to demonstrate that the specific realities of the role make the arrangement unworkable. A flat refusal or a procedurally thin response does not meet that bar. For workers over 55 thinking about raising this, a specific, well-prepared request, framed around your actual experience and paired with a realistic trial proposal, is now considerably harder for an employer to dismiss without engaging seriously with the process.