Victoria is making Working from Home a Right. Businesses should read the fine print.
There’s been a further development in the ongoing work from home debate that we’ve been watching closely here at Workable Law & IR (see our earlier pieces here and here).
A right to work from home is now on the table in Victoria, providing a presumptive entitlement for Victorian employees to work from home (WFH) 2 days per week (rather than a right to request such a flexible working arrangement). Rather than amend industrial legislation which is Constitutionally challenging for Victoria giving the referral of its workplace relations power to the Commonwealth in the 1990s, the Equal Opportunity Amendment (Work from Home) Bill 2026 (Bill) will, if made, insert the new right into the Equal Opportunity Act 2010 (Vic) (Act), borrowing anti-discrimination concepts such as "inherent requirements" and grafting them onto a general employment entitlement. The result is an awkward fit, and employers with Victorian operations will need to work through it carefully.
If passed, the changes made by the Bill will commence on 1 September 2026, with small business employers (those with less than 15 employees including across Associated Entities) exempt until 1 July 2027, giving businesses only a short time to prepare for what will be significant changes for some.
What is the new Bill about?
The Victorian Government has introduced the Bill into Parliament. The Bill amends the Act to give certain "eligible employees" an enforceable right to work from home 2 days per week. Overall, it appears to be an awkward mashing together of concepts from anti-discrimination law (such as ‘inherent requirements’) & general employment law, while skirting constitutional issues by carving out employees entitled to request flexible working arrangements under s 65 of the Fair Work Act 2009 (Cth) (FW Act)(who are requesting WFH to accommodate the circumstances that make them eligible under the FW Act). However, employees entitled to make a request under the Federal framework, but who say they are not making the request to cover their protected circumstances, will still come within eligibility of the Victorian framework.
Other features of the Bill include:
Eligible employees include regular and systematic casuals and part-time employees, but not non-regular casuals, employees on "probation" (not defined, so presumably not limited to the FW Act minimum employment period), apprentices, trainees, interns, graduate program participants, or regulated workers and businesses under the FW Act.
An employee triggers the right by giving a written "work from home (WFH) notice" setting out the days, times and (if not their home) the place they intend to work from (though they need not specify days or times if it is not practicable).
The employer must allow the proposed arrangement unless it is not reasonable and must respond in writing within 21 days.
If 2 days WFH is not reasonable, the employer must offer an equivalent or lesser reasonable arrangement and give reasons.
Reasonableness is assessed against an exhaustive list of factors, including the inherent requirements of the role and the impact on the employer (productivity, safety, supervision, training, client relationships, customer service, confidentiality and data protection, excessive cost, and impractical restructuring or hiring). Several limbs of this reasonableness test apply only where the impact is a "significantly adverse" one, which appears to be a high test.
The employer must pay any reasonable costs necessary to enable the WFH arrangement (including essential hardware, software and IT security costs).
What if there’s a dispute?
If there is a dispute about an employee’s right to work from home, or an employer’s refusal to allow them to, disputes can be brought to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) who can attempt to resolve the dispute on a voluntary basis, e.g. by conciliation. Alternatively, employees may make a claim in the Victorian Civil and Administrative Tribunal (VCAT), whether or not they have first made an application in the VEOHRC. VCAT will be empowered to make a wide range of orders including:
orders for compensation;
orders that a person do anything specified in the order with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention;
an order that the employer allow an employee to whom the contravention relates to work from home for the period specified in the order; and
an order that the employer do anything specified in the order to comply with a provision of Part 6B of the Act dealing with the right to WFH (other than an employee’s obligations in respect of WFH Notices).
Employees will also be able to apply to VCAT for interim orders to prevent any party to a dispute from acting in a manner prejudicial to dispute resolution or to any decision or order the Tribunal might subsequently make. This could conceivably include orders permitting the employee to WFH while their substantive dispute is being determined by VCAT, which could take several months.
What should Employers be doing now?
There are a number of steps employers with employees in Victoria can take now to start preparing for the changes to be made by the Bill. These include:
ascertaining who the Bill will apply to within their workforce, including how they will delineate between regular and non-regular casual employees;
considering who it will be reasonable to allow to work from home 2 days per week (or a pro-rata amount for employees working less than 38 hours per week), and who it will not, having regard to the test for reasonableness in the Bill;
putting in place procedures for managing WFH Notices and responses;
thinking about how the probationary period is defined in employment contracts and policies;
assessing the inherent requirements for roles based in Victoria;
considering how they will manage the cultural impact to their organisation if different arrangements for WFH apply in Victoria versus to employees in other States and Territories; and
updating policies, procedures and training;
Workable Law & IR’s Partners have assisted numerous employers with WFH arrangements. If you have any questions or would like to discuss what the Bill could mean for your business, please don’t hesitate to contact us.