The Victorian Allan Labor Government has introduced a Bill to amend the Equal Opportunity Act 2010 (Vic) to create a new ‘right to work from home’ for employees that is intended to apply from 1 September 2026 (small businesses will have until 1 July 2027). We set out the proposed changes below, but this change deserves some comment and context.
Much has already been written about the need this new right is directed at addressing. Clients are fairly asking how this proposed right will apply where policies and procedures have been drafted to take account of the federal Fair Work Act 2009 (Cth) flexible work arrangement provisions. Others have enterprise agreements that already address flexible work arrangements; indeed, so does the State of Victoria in its Victorian Public Service Enterprise Agreement 2024, which has a whole part on flexible work and individual flexibility arrangements.
The answer is not simple. It will not be straightforward for employers, particularly those who employ across a number of states, to manage different arrangements for Victoria, and indeed different arrangements within its Victorian-based workforce depending on employees’ eligibility to access the Fair Work Act regime – particularly where such eligibility may not be obvious to the employer. Victorian-based employees will have a right to assert and this places them in an arguably favoured position when compared to employees outside of Victoria who can apply to put in place flexible arrangements.
There is considerable debate regarding the operative effect of the law where federal laws already address flexibility arrangements. Without going into the merits of the argument, a challenge to the proposed right is entirely foreseeable given the apparent inconsistency arising from the substantial overlap between the new Part 6B of the Equal Opportunity Act and Division 4 of Part 2-2 of the Fair Work Act, which deals with requests for flexible working arrangements. We expect the commentary on this issue to continue including as it relates to inconsistency with EAs.
Employers will also need to grapple with the overlapping standards in relation to what constitutes ‘reasonable’ costs for essential work-related equipment under this new Part 6B and the employer’s ongoing work health and safety obligations to provide a safe workplace so far as is ‘reasonably practicable’, arguably a higher bar that will continue to apply to home-based and other agreed workplaces.
So what does the Victorian proposal provide? This table sets out the key features of the proposed new right.
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Topic
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Key change
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Detail
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New right to work from home |
A new Part 6B is inserted into the Principal Act, conferring a right on eligible employees to work from home. |
An eligible employee has a right to work from home for a period equal to or less than 2 days per week (for employees working 38 hours or more), subject to a reasonableness test. Part-time employees are entitled to a pro rata period, with the method of calculation to be prescribed by regulation. |
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Eligible employees |
The right applies to "eligible employees", a newly defined term. |
Eligible employees include all employees other than : (a) employees on probation; (b) employees undertaking an apprenticeship, traineeship, internship, graduate program, work experience program or similar; (c) regulated workers, regulated businesses, or certain parties to a services contract under the Fair Work Act; (d) employees already entitled to request flexible working arrangements under s 65 of the Fair Work Act; (e) casual employees not employed on a regular and systematic basis; and (f) prescribed employees or classes of employees. |
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"Home" — expanded definition |
"Home" is broadly defined. |
"Home" includes a place determined by agreement between the employee and their employer (i.e. it is not limited to the employee's private residence). |
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Work from home notice |
An eligible employee must give written notice to exercise the right. |
The notice must set out the days and times the employee intends to work from home, and identify any location other than the employee's private residence. If it is not practicable to specify days and times, the employee is not required to do so. |
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Employer obligation to allow WFH |
Employers must allow eligible employees to work from home, subject to a reasonableness test. |
The employer must allow work from home as set out in the notice unless it is not reasonable. If the specific days/times requested are not reasonable, the employer must offer an equivalent alternative period. If no equivalent period is reasonable, the employer must allow work from home for any lesser reasonable period. |
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Reasonableness test — prescribed factors |
The matters an employer may consider in assessing reasonableness are exhaustive. |
The only factors the employer may consider are: (a) the inherent requirements of the role (including physical presence, equipment, and in-person interactions); (b) the impact on the employer, including significant decreases in productivity or efficiency, adverse safety impacts, adverse impacts on supervision/training/professional development, stakeholder relationships, customer service, confidentiality or data protection, excessive financial costs, impractical changes to working arrangements, or impractical new hirings; and (c) any prescribed matters. Regard must also be had to legal requirements relating to safety, security, welfare or supervision. |
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Employer response obligation |
The employer must provide a written response within 21 days. The employer must provide a written response within 21 days. |
The response must state whether the employer considers it reasonable for the employee to work from home as set out in the notice. If the employer does not consider it reasonable, the response must state whether the employer will allow work from home on alternative days/times (with reasons) or will not allow work from home at all (with reasons). |
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Employer must pay reasonable costs |
Employers must pay reasonable costs necessary to enable eligible employees to work from home. |
Reasonable costs include costs for essential equipment (such as hardware and software) and secure access to the employer's information systems. |
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Victimisation |
The prohibition on victimisation is extended to Part 6B. |
Victimisation protections under the Principal Act now apply to contraventions of Part 6B (other than s 102K, which relates to the employee giving notice). |
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Dispute resolution — VEOHRC and VCAT |
Disputes under Part 6B may be brought to the Victorian Equal Opportunity and Human Rights Commission and the Victorian Civil and Administrative Tribunal (VCAT). |
A person claiming a contravention of Part 6B (other than s 102K) may bring a dispute to the Victorian Equal Opportunity and Human Rights Commission. An application may also be made to VCAT, whether or not a dispute has been brought to the Commission. |
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VCAT remedies |
VCAT's powers are expanded with new remedies specific to WFH disputes. |
VCAT may order an employer who has contravened s 102L to allow the employee to work from home for a specified period. VCAT may also order an employer to do anything specified in the order to comply with Part 6B. |
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Transitional — small business employers |
The amendments apply to small business employers on a delayed basis. |
Small business employers (fewer than 15 employees) are not subject to the amendments until 1 July 2027, notwithstanding the general commencement date of 1 September 2026. Casual employees are excluded from the headcount unless employed on a regular and systematic basis, and employees of associated entities are included. |
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Relationship with other laws |
The WFH right is additional to, and does not affect, existing rights. |
Part 6B does not limit any existing entitlement under the Principal Act, any other Victorian or Commonwealth Act, or any instrument made under such Acts. Employers may also offer WFH to non-eligible employees or for periods greater than the statutory entitlement. |
The proposed right is more readily accessible than the federal flexible work regime and arguably more generous when considering:
- there are no specific qualifying circumstances
- no reason is required
- refusal is permitted only where the arrangement is not reasonable, as opposed to the federal non-exhaustive list of ‘reasonable business grounds’
- the employer must pay reasonable costs, including essential equipment and secure system access.
What should employers do now?
Although the amendments are not yet in force, employers with Victorian-based employees should begin preparing now. In particular, we recommend the following steps:
- Review existing work from home and flexible work policies to identify where they may need to be updated to accommodate the new right, particularly if those policies were drafted solely by reference to the Fair Work Act.
- Assess the cost implications of the obligation to pay reasonable costs for essential equipment and secure system access, and consider whether existing IT and procurement arrangements are fit for purpose.
- Consider the interaction between the new Victorian right and any existing enterprise agreement provisions or federal flexible work arrangement processes, and take advice on how to manage employees across multiple jurisdictions consistently.
- Train managers and HR teams on the new framework, including the exhaustive list of reasonableness factors and the victimisation protections, to reduce the risk of non-compliance.
We will continue to monitor the progress of these amendments and any challenge. If you would like to discuss how these changes may affect your business, please contact Mallesons.
