Working from home -the debate continues
In April last year, I attended the AFR Workforce Summit, during which it was revealed that:
headlines about working from home (WFH) were some of the most viewed on the Australian Financial Review’s website; and
many of the speakers were tired of the WFH debate and considered it settled – Hybrid is the answer.
However, since that time, the WFH debate has raged on, spurring Bills at both a State and Federal level, while at the same time, the Fair Work Commission’s (FWC) case on its own motion to introduce a WFH clause into the Clerks – Private Sector Award (Clerks Award) has continued, with a decision pending.
In October last year, my Partner Matthew Robinson, published an article on Working from Home and the Modern Workforce. Among other things, that article looked at some of the competing positions put before the FWC in the Clerks’ Award Case for determination.
Below, I’ve examined the information that has come to light about the two Bills dealing with expanding WFH rights:
1. The first being the Fair Work Amendment (Right to Work from Home) Bill 2025 (Cth), which is a private members' Bill from Senator Barbara Pocock, currently the subject of a Senate Inquiry; and
2. The foreshadowed Victorian Bill to amend the Equal Opportunity Act 2010 (Vic) to give Victorians who can work from home, the ‘legal right’ to do so, two days per week.
The Commonwealth WFH Bill
The Fair Work Amendment (Right to Work from Home) Bill 2025 (Cth) (Pocock Bill) was introduced into Federal Parliament in November 2025. The Bill seeks to amend the Fair Work Act 2009 (Cth) (FW Act) to do several things including:
Removing the eligibility requirements in s 65(1) of the FW Act in relation to making flexible working requests (not just requests to WFH), such as the requirement that the employee is:
pregnant;
the parent or carer of a child who is school aged or younger;
55 or older;
experiencing family and domestic violence etc; and
Change the basis on which an employer can refuse an employee’s flexible working request, if it is a request to WFH (or otherwise remotely) for up to 2 days’ per week, from the current standard of ‘reasonable business grounds’ to be limited to situations where “the requested change in working arrangements would make the performance of the inherent requirements of the employee’s employment duties impractical or impossible.” In determining whether this threshold is met, under the Bill “the employer must consider any reasonable adjustments the employer could make to accommodate the employee’s request.”
Curiously, while the Pocock Bill seeks to remove the protected attributes from being a threshold eligibility requirement for the right to make a flexible working arrangement under the FW Act, it nonetheless seeks to import the concept of “inherent requirements” and “reasonable adjustments”. These are terms used in the Disability Discrimination Act 1992 (Cth) (DDA) with a significant body of jurisprudence in anti-discrimination law. However the Pocock Bill imports these terms into the FW Act, without giving them context or definition (although noting that the DDA itself is currently under review by the Commonwealth Government) . [1]
The Pocock Bill is currently before a Senate Inquiry, with Submissions having being made by a range of parties including employer groups, unions and academics. The Inquiry is due to report by 18 June 2026.
While employers might not usually pay much attention to a Greens’ Senator’s Private Member’s Bill, it will be worth recalling that the genesis of the same job, same pay laws started as a Private Member’s Bill from the now Prime Minister Anthony Albanese, when he was a member of the opposition in 2021. Similarly, the right to disconnect first emerged as a Private Members Bill, introduced by then Greens MP Adam Bandt.
Victorian WFH Bill
In August 2025, the Victorian Government opened up consultation on the announcement by Victorian Premier, Jacinta Allan, to legislate a right for Victorian workers to work from home two days a week. Little information was provided at that that time on how the proposed legislation would operate, given Victoria’s referral of its workplace relations powers to the Commonwealth in the 1990s.
However, on 4 March 2026, the Victorian Premier announced that the proposed right to work from home “will be enshrined in the Equal Opportunity Act.”[2] This is an interesting approach, given that that Act was enacted for the purpose of “equal opportunity and protection against discrimination, sexual harassment and victimisation” and currently prohibits discrimination in a range of areas, including employment, on the basis of defined protected “attributes” such as disability, age, industrial activity, sexual orientation etc, whereas the announcements in relation to the proposed WFH right, all seem to cast it as a right at large for any employee who is able to work from home.
The Premier’s announcement also provided some further detail about the proposed right to WFH including that:
It will apply to small business employers;
Disputes will go to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for conciliation;
If conciliation fails, the dispute will be heard at the Victorian Civil and Administrative Tribunal (VCAT);
The law (if made) will come into effect from 1 September 2026 for employers other than small businesses (with less than 15 employees), for whom it will have a delayed commencement date of 1 July 2027.
There are likely to be constitutional hurdles to these proposed changes, in that the Victorian Government is looking to empower a Victorian Tribunal to deal with workplace matters that are ordinarily covered by the FW Act. It is apparent what the Victorian Government is attempting to do, if we look at s 27 of the FW Act (which lists certain State & Territory Laws as being permitted from being excluded by the FW Act) where the permitted list unsurprisingly contains the Equal Opportunity Act 2010 (Vic) (EO Act) as still applying. The EO Act is slated to be a Trojan horse to inject constitutional control of workplace matters back into Victorian government powers. If these Victorian Laws were part of their own Act, they would have no operative effect on account of s26(2)(b) & (4) of the FW Act. Of course, the Commonwealth Government could stamp out this Trojan horse approach by Commonwealth regulation (see s 28 of the FW Act), but doing so would put a Federal Labour Government in tension with a State Labour Government.
This approach undermines the rationale for the referral of State workplace relations powers to the Commonwealth Government, which was intended to provide consistency of regulation nationwide. If passed, employers with operations in Victoria and other jurisdictions may need to consider whether they will adopt the approach nationally, or provide separate arrangements for their Victorian employees, and any consequential cultural issues that may arise within their organisations in relation to that approach.
Workable Law and IR will keep a close eye on these developments, and the progress of the FWC WFH case, and will provide updates as more information becomes available. In the meantime, employers with Victorian operations should consider now how they will accommodate rights of employees who can work from home to do so if their policies and contracts do not already facilitate hybrid working arrangements.
If you have any questions, or would like to discuss, please don’t hesitate to contact us.
Partner
[1] Attorney-General's Department, 'Review of the Disability Discrimination Act' (Web Page) https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law/review-disability-discrimination-act.
[2] Premier of Victoria, 'Work From Home Protected In Law From 1 September' (Media Release, 4 March 2026) https://www.premier.vic.gov.au/work-home-protected-law-1-september.