How the law and employers are responding to flexible work

In recent years, we’ve seen the biggest disruption to the traditional 9 to 5, work from the office model, with flexible work emerging as one of the headline issues for employers and employees.

We’ve seen high-profile disputes litigated in the Fair Work Commission regarding employees’ right to request flexible work arrangements under the Fair Work Act 2009 (Cth) (FW Act) and public backlash from Canberra’s public servants to the federal opposition’s planned policy to force public servants back to the office five days a week, making it clear that employees feel passionately about being able to work flexibly. So, knowing how closely employees hold flexibility to their hearts, how is the law and how are employers responding to flexible work?

The law seems to be responding to flexible work by fuelling momentum behind the idea. In the second half of 2025, moves were made at the state and federal levels to enshrine a statutory right to work from home.

At a state level, the Victorian Government announced that it would introduce legislation to provide employees with a right to work from home for at least two days per week for employees in the public and private sector if an employee could reasonably do their job from home. This is despite serious legal questions over whether the laws would be constitutional given most employment in Australia is regulated by federal legislation.

At the federal level, the Greens introduced a bill to amend the FW Act to expand an employee’s right to request flexible work arrangements and to legislate an employee’s right to work from home at least two days a week as long as it is ‘reasonable and practicable’. As at March 2026, the bill is currently before a Senate inquiry. The Federal Government has not expressed its support for a federal statutory right to work from home, however, once the Senate inquiry releases its report, we expect to know more about the likelihood this bill would pass.

In the Fair Work Commission, proceedings to develop a working from home term for the Clerks Award – Private Sector Award 2020 are also well underway, with the Commission in the process of hearing submissions on the proposed term. While the unions and employer groups both support varying the award to make working from home easier, there has been fierce debate over the form the work from home clause should take. The unions are pushing to introduce a term giving employees a right and set process to follow to request to work from home. On the other hand, the employer groups are interested in using the facilitative agreement provisions in the award to allow for working from home arrangements, which would allow for the variation of other award provisions for employees working from home, such as when overtime and penalty rates are triggered or breaks taken.

The matter was listed for a hearing before the FWC in early February so it seems likely we will soon know the final form of the clause the Fair Work Commission decides on and whether any other variations to the Clerks Award are made.

Such developments indicate that the law seems to be responding to flexible work with the same favourable sentiment employees have towards it. So, what of employers then?

Based on the attention given by the national media last year to Chandler v Westpac Banking Corporation [2025] FWC 3115, you might think that employers are anti-flexible work. In that case, Westpac refused a flexible work arrangement request from a part-time employee to perform all her work remotely, despite the fact she had been successfully working to this arrangement for many years. Westpac also did not follow the procedural requirements employers must follow when responding to flexible work arrangement requests.

It was for these reasons that the FWC approved the employee’s request, reflecting that the Commission recognises that there has been a shift in the type of work arrangements employees can effectively perform their work in, and that employers should be recognising this as well. And that, in our view, is how most employers are actually responding to flexible work in practice (particularly employers in ‘white collar’ sectors).

While employers may not go as far as supporting a statutory right to work from home, many have recognised the potential flexible work has for increasing not only the productivity, but the wellbeing of their employees. In January of this year, the Productivity Commission released a report which showed that around 40% of all employees in Australia work flexibly and they do this with agreement and endorsement from their employers who have introduced flexible work policies and practices that suit their businesses.

What this means for employers

Given the current climate, the best approach an employer can have is usually making flexible work ‘work’ for their business. Practically, this means employers should:

• consider promulgating a workplace policy setting out their position on working from home with enough flexibility to appropriately respond to flexible working arrangements requests;
• train managers and team leaders to understand the procedural requirements for responding to flexible working arrangements and know when to escalate those requests to the business’ human resources function; and
• if employing employees covered by the Clerks Award – Private Sector Award 2020, monitor for developments in the proposed flexible working variations to that award.