Home is Where the Work is: Victoria's Proposed New Work From Home Right

After much anticipation, the Victorian Government has introduced legislation to set out the detail of proposed amendments to the Equal Opportunity Act 2010 (Vic) to create a new statutory right for eligible employees to work from home in Victoria (WFH).

While there is already a high incidence of employers offering WFH arrangements as part of their way of working, supplemented by the right to request flexible working arrangements under the National Employment Standards, the new laws elevate this right to request to a notification of the exercise of a right. In the absence of a permitted basis to refuse, employers will be required to pay any reasonable costs necessary to enable the employee to work from home.

Employers with Victorian operations will accordingly need to establish processes for managing notifications received from employees and provision for the cost of equipment and systems necessary for the performance of work from home.

The legislation will grant an “eligible employee” a right to WFH for up to 2 days a week (or a pro rata period for part-time employees). The right will take effect for most employees from 1 September 2026, but will have a delayed commencement for small business employers from 1 July 2027.

The definition of a small business employer is consistent with the definition under the Fair Work Act 2009 (Cth) (FW Act), being an employer of less than 15 employees including any employees of any associated entity.

An eligible employee will not include:

• employees on probation;
• those undertaking apprenticeships or similar programmes, for the period of those training programmes;
• regulated workers and regulated businesses within the meaning of the FW Act, capturing particular gig workers or road transport operators;
• casual employees not employed on a regular and systematic basis; and
• employees who would like to change their working arrangements under the relevant provisions of the FW Act because of protected circumstances (such as caring responsibilities, pregnancy, disability, or being 55 or older), where they are eligible to do so because of those circumstances. In such a case, any renegotiation of the employee’s flexible working arrangement will continue to be in accordance with the consultation provisions of the FW Act rather than the Victorian regime.

An eligible employee is able to exercise their right to WFH by providing a written notice to their employer setting out, so far as practicable, the days and specific times that the employee intends to work from home (or from another place, if not their home).

If a notification from an eligible employee is received, an employer must respond within 21 days, confirming whether it considers that it is (or is not) reasonable for the employee to WFH. The response will also need to include reasons for any refusal.

Where it is deemed reasonable for an employee to work from home, businesses will need to pay the reasonable costs necessary for the eligible employee to WFH. This includes the cost of any essential equipment and secure systems access. The extent to which such reasonable costs may extend to broader office equipment is unclear and likely to be an early area for disputation.

The legislation limits the bases on which an employer may determine that a WFH notification is not reasonable. Whether a WFH notification is reasonable or not is not a matter of discretion for employers and will need to meet a much higher threshold than mere inconvenience or disruption to the employer’s preferred way of working.

Whether a request is reasonable depends on:

• the inherent requirements of the employee's role, including whether those requirements can be satisfied on specific days or at specific times:
  • without the employee's attendance in person at their regular workplace; or
  • without the employee using equipment at their regular workplace; or
  • without in person interactions between the employee and members of the public or clients or customers of the employer, and / or
• the impact that the employee working from home would have on the employer, including whether the employee doing so on specific days or at specific times would:
  • be likely to cause a significant decrease in productivity or efficiency; or
  • have an adverse impact on any person's safety; or
  • have a significant adverse impact on supervision, training or professional development of the employer's employees; or
  • have a significant adverse impact on the capacity to build relationships between the employee and stakeholders, clients or customers; or
  • have a significant adverse impact on customer service outcomes; or
  • have a significant adverse impact on confidentiality or data protection; or
  • impose excessive financial costs on the employer; or
  • require the employer to make changes to the working arrangements of the employee or any other employee that are impractical; or
  • require the employer to make new hirings that are impractical.

If it is assessed that the period that an eligible employee seeks to WFH is unreasonable, but a lesser period would be reasonable, the employee must be permitted to WFH for that lesser reasonable period.

While the bases on which a WFH notification appear on their face to be relatively broad, the requirement that the employer can prove the impact is “significant” or “excessive” will set the bar for refusal very high and will foreseeably form the basis of disputes arising from employees aggrieved at any decision to refuse their WFH notification.

An employee whose WFH notification is refused or who is subjected to detriment because they have exercised or propose to exercise their right to WFH will have access to protections against victimisation and the dispute resolution pathways otherwise provided under the Equal Opportunity Act, being conciliation by the Victorian Equal Opportunity and Human Rights Commission and, if the absence of a conciliation resolution, determination by the Victorian Civil and Administrative Tribunal.

The Tribunal will have the power to make orders requiring an employer to allow an employee to work from home for a specified period, or to do anything specified in the order to comply with the requirements of the WFH provisions of the legislation.

Given the qualitative assessment associated with whether a basis for refusing a WFH notification is sufficiently significant or excessive, the new right to WFH will place a lot of pressure on an already heavily burdened Commission and Tribunal.

While the intended operation of the legislation may appear clear enough, there arises a technical question as to whether the Victorian Equal Opportunity Act is the appropriate vehicle through which to create a right to WFH. In particular, there are constitutional delineations between matters about which the Victorian government can make workplace laws and those matters about which the Federal Government makes workplace laws.

Currently, the extent of any regulation of WFH arrangements is dealt with under the flexible working arrangement regime under the FW Act, subject to any more beneficial reasonable adjustments entitlements under indirect discrimination laws. Particularly given that the proposed right to WFH is not tied to supporting employees with protected attributes, it is broadly anticipated that the proposed new laws may be subject to challenge as reaching beyond the types of workplace matters and flexibilities that can reasonably be regulated under the Equal Opportunity Act.

In the meantime, given the prospect of an influx of WFH notifications upon the commencement of the new laws for most employers from 1 September, consideration should be given to planning around the following matters:

• reviewing position descriptions and assessing the scope for the position to be performed from home through the lens of the reasonableness measures prescribed under the proposed legislation;

• budgeting for reasonable costs associated with the equipment and systems required for the performance of work from home, if not already provided, including decisions around whether equipment will be provided by the employer or else costs incurred by employees are reimbursed;

• consider whether any existing flexible working policies and procedures need to be reviewed and updated for consistency with the proposed Victorian framework, including any policies and practices around managing anchor days and other core attendance expectations;

• establishing or reviewing processes and procedures for receiving, assessing, and responding to WFH notifications within the 21-day deadline. Such processes and procedures should include a mechanism for consulting with employees who have submitted a WFH notification to endeavour to reach mutually workable solutions; and

• ensuring that decision makers are informed about the basis on which WFH notifications may be refused, and having mechanisms in place to escalate or seek review of particular notifications that may not clearly fit within the grounds provided under the legislation.

Many businesses with national operations will also be thinking through the extent to which working from home arrangements can and should be harmonised across their entire workforce.

Employers are also well advised to use this period of preparation for the new WFH rights to review safety and information security policies and procedures to ensure that sufficient consideration is given to ensuring that employees are working safely and securely when working remotely.

In practical terms however, we expect many employers who value the benefits of face-to-face collaboration to be considering how office attendance can be lawfully encouraged, supported and incentivised. This is something to be carefully managed to ensure that any solutions do not fall foul of legal protections to employees, including the general protections framework in the FW Act.

Kingston Reid can of course provide support and guidance on all of these matters.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.