The debate around working from home has shifted from convenience to contention. What began as a necessity during the pandemic has evolved into a defining feature of modern employment, with many professionals now viewing flexibility as standard rather than exceptional. Yet as organisations recalibrate their workplace models in response to productivity, culture and commercial realities, tension is building between expectation and entitlement.
Recent data highlights the growing divide. Sixty-six percent of surveyed employees believe working from home should be a right, yet one in three have had a request for flexibility denied in the past year . At the same time, employers are increasingly formalising hybrid policies, often seeking greater consistency and oversight. The result is a widening gap between what employees think they are entitled to and what the law actually provides.
“There is no generalised right to work from home in Australia.”
On a recent AU Market Update, Host Liz Punshon, Victoria Managing Director, was joined by Guest Antonino Meduri, Principal from AM Law & Partners, to unpack where flexibility expectations end and legal obligations begin.
Antonino was clear from the outset: despite cultural shifts, Australian law does not recognise a universal right to work from home. Instead, entitlements arise in specific and limited ways. They may be created through contractual terms, enterprise agreements, or policies incorporated into contracts. More commonly, they arise through the Fair Work Act, which provides certain employees with a right to request flexible working arrangements.
Importantly, this is a right to request, not a right to receive. Eligible employees include parents or careers of school-aged children, employees over 55, individuals with disabilities, those experiencing family and domestic violence, and careers supporting affected family members. Employers must respond within 21 days and can only refuse on reasonable business grounds, such as operational incompatibility or significant cost impact.
The distinction may appear technical, but it is commercially significant. Antonino noted that one of the biggest misunderstandings in the market is the belief that hybrid work has become an acquired right post-COVID. Many employees assume that because remote work was widely permitted over the past few years, it has become permanent. Legally, this is rarely the case.
Another common misconception arises when workplace policies are treated as contractual guarantees. For example, if a policy states employees may work from home and is incorporated into an employment contract, it may unintentionally create enforceable rights. Attempting to reverse such arrangements without agreement can expose businesses to breach of contract claims.
Beyond contractual risk, implementation is where many organisations falter. Abruptly reversing long-standing hybrid arrangements without consultation can trigger obligations under modern awards or enterprise agreements. A return-to-office mandate may constitute a major workplace change, requiring formal consultation processes. Failure to follow these processes can escalate quickly, particularly if employees take matters to the Fair Work Commission.
Consistency is another pressure point. Applying hybrid policies unevenly across teams can lead to discrimination or adverse action claims. Similarly, failing to properly document the rationale behind approving or refusing flexible work requests can undermine a business’s ability to defend its decisions later.
Perhaps the most expensive mistakes stem from poor documentation and communication. Without clear records of consultation, operational reasoning, or performance considerations, employers may struggle to demonstrate that a refusal was based on reasonable business grounds. Given that disputes can be lodged with relative ease, prevention is far less costly than defence.
"So what does a legally sound and commercially realistic hybrid model look like in 2026?"
According to Antonino, it starts with alignment. Contracts and policies must be clearly drafted and intentionally structured. Policies should preserve employer discretion where appropriate and avoid unintentionally creating contractual entitlements. Equally important is educating managers and HR teams on the proper handling of flexible work requests, ensuring compliance with statutory timeframes and consultation requirements.
Documentation remains central. Each request, whether granted or refused, should be supported by clear reasoning and consistent application. Employers must also ensure that consultation obligations are met when implementing broader policy changes.
Ultimately, the key challenge for organisations is balancing evolving employee expectations with operational control. Workplace culture may have moved faster than legislation, but legal frameworks still define the boundaries. Flexibility can be a powerful tool for attraction and retention, yet it must be structured, defensible and commercially sustainable.
How can businesses balance flexibility expectations with legal and operational realities?
- Review employment contracts to ensure policies are not unintentionally incorporated as contractual rights
- Clearly define eligibility and approval frameworks for hybrid or flexible arrangements
- Train managers on handling flexible work requests and documenting decisions properly
- Consult employees before implementing major workplace changes
- Apply policies consistently across teams to reduce discrimination risk
- Keep thorough records of consultation, operational reasoning and outcomes
