No Place Like Home? What Victoria's New World-Leading 'Right to Work From Home' Legislation Means for Employers

The Victorian Government has today made public its long foreshadowed “right to work from home” reforms.
 
If passed, the Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) would establish the world's most expansive statutory right to work from home, by creating a presumption in favour of employees working from home.
 
Rather than employees simply having a right to request flexible working arrangements as currently exists under the Fair Work Act 2009 (Cth), eligible Victorian employees would be entitled to work from home for up to two days per week, on days and times of their choosing, unless their employer can demonstrate that doing so is not reasonable.

This article outlines the key features of the Bill and the practical implications for employers.

Key features of the Bill  

1.    A statutory entitlement to “work from home”

The Bill proposes to provide ‘eligible employees’ whose work can reasonably be performed from home with an entitlement to do so for up to two days per week. 

Employees who wish to exercise the entitlement must provide their employer with written notice setting out the days and times they intend to work from home (unless it is impractical for them to do so). 

The Bill defines "home" to include a place agreed between the employee and employer. As a result, the entitlement is not necessarily limited to an employee's residential address and may extend to alternative locations such as another residence or somewhere interstate.

If enacted, the reforms will move working from home from a request-based model to a presumptive entitlement, with the burden shifting to employers to justify why attendance at the workplace is required.

2.    Who is an “eligible employee”

While the proposed entitlement is extremely broad covering full-time, part-time and casual employees, it is not universal.
 
The following categories of workers are excluded from the proposed regime:

• employees on probation (noting that "probation" is not defined in the Bill);
• apprentices, graduates, interns, work experience participants and participants in similar programs;
• non-regular and systematic casual employees;
• employee-like workers (within the meaning of the Fair Work Act);
• regulated road transport contractors (within the meaning of the Fair Work Act);
• digital platform workers;
• employees who are parties to a services contract (within the meaning of the Fair Work Act); and
• any other prescribed employee or class of employees.

The Bill also excludes employees who are entitled to make a flexible working arrangements request under section 65 of the Fair Work Act and who would like to change their working arrangements because of those circumstances.
 
This appears to be a deliberate attempt to minimise potential constitutional inconsistency issues by preserving the operation of the existing federal flexible working arrangements regime for employees who are already entitled to seek flexibility under the Fair Work Act.
 
However, the practical effect of this exclusion is likely to be limited. Employees who are entitled to make a flexible working arrangements request under section 65 of the Fair Work Act may simply assert that they are seeking to work from home for reasons unrelated to those circumstances.
 
The Bill also provides that part-time employees and eligible casual employees will receive a pro-rata entitlement. However, the method for calculating that entitlement is yet to be prescribed by regulation and remains unknown.

3.    Application to all employers (with delayed commencement for small business)

The Bill applies to all employers regardless of size. 

If passed, the entitlement will commence for employees working for non-small business employers from 1 September 2026 and for small businesses (with fewer than 15 employees) from 1 July 2027. 

4.    Employers’ obligation to fund working from home 

The Bill requires employers to pay any reasonable costs necessary to enable an employee to work from home, including (but not limited to) essential equipment, such as hardware and software, as well as secure access to the employer's information systems.
 
For employers, this represents a potentially significant departure from existing arrangements and may create additional costs associated with facilitating and supporting remote work arrangement for Victorian based employees.

5.    Employer refusal 

The Bill does not allow employers to simply approve or reject a working from home notice they receive from an employee.
 
Instead, an employer must permit an arrangement unless it is not reasonable to do so. Even then, the employer is required to consider whether an equivalent arrangement can be accommodated and, if not, whether a lesser arrangement is reasonable.
 
The Bill also strictly limits the matters that are to be considered when assessing whether an employee can reasonably work from home. These include the inherent requirements of the role, productivity and efficiency impacts, supervision and training requirements, customer service outcomes, confidentiality and data security concerns, safety considerations, excessive financial costs and whether accommodating the arrangement would require impractical changes to working arrangements or staffing levels. 

6.    Enforcement and dispute resolution 

The Victorian Government had publicly indicated that disputes arising from the new working from home right would be dealt with by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) in the first instance, with unresolved disputes capable of proceeding to the Victorian Civil and Administrative Tribunal (VCAT).
 
However, the Bill does not appear to alter Victoria's existing enforcement framework under the Equal Opportunity Act (EO Act). This means that employees could likely still commence proceedings in VCAT without first participating in a conciliation process. 
 
Even where employees elect to commence a dispute in the first instance with VEOHRC, employers should not assume disputes will be resolved quickly. According to VEOHRC's most recent Annual Report, only 42% of complaints were finalised within six months and only approximately 64% of matters that proceeded to conciliation resulted in settlement.
 
Where matters proceeding to the VCAT, the average wait time from filing of a claim to hearing under the EO Act is 25 to 30 weeks. 
 
In practical terms, employers may find themselves managing an ongoing employment relationship while simultaneously defending a dispute about where that employee performs work for many months, or possibly more than a year.

What remains unclear 

Despite the Bill's clear attempts to avoid overlap with the Fair Work Act, most notably through the exclusion of employees who are entitled to make a flexible working arrangements request, questions remain about the extent to which Victoria can legislate in an area already regulated by the Commonwealth.
 
Unlike most States, Victoria referred its private sector industrial relations powers to the Commonwealth in 1996. As a result, workplace relations for most Victorian employees are governed by the Fair Work Act and the national workplace relations system.
 
Against that background, it remains to be seen whether Victoria can create a separate statutory right to work from home and a separate enforcement regime under the Equal Opportunity Act. Given the potential overlap with the existing federal framework, it would be surprising if the legislation did not attract close legal scrutiny and potentially constitutional challenge if enacted.

Possible implications for employers

The most significant aspect of the proposed reforms is the shift from a right to request working from home to a presumed entitlement to do so. 
 
Practically speaking, this means employers will be required to justify why attendance at the workplace is necessary and why a role cannot reasonably be performed remotely. In doing so, the reforms place greater scrutiny on an employer's managerial prerogative to determine how work is organised, supervised and performed within its business.
 
The Bill also has the potential to fundamentally alter the dispute landscape. Rather than disputes being dealt with through the Fair Work Commission's relatively quick and informal flexible working arrangements arbitration jurisdiction, employers may find themselves defending workplace attendance decisions disputes before VCAT (a less familiar jurisdiction for some), with employees able to seek orders requiring them to be permitted to work from home. 

What should employers do now?

While the Bill is yet to pass Parliament, employers should not wait until commencement to consider its implication.

In particular, employers should:

• review existing flexible work and hybrid work policies and consider how the proposed changes might impact such policies;
• identify roles that genuinely require workplace attendance and clearly document the operational reasons why;
• assess whether current supervision, training, collaboration, customer service, performance management, confidentiality and data security arrangements depend on employees being physically present in the workplace;
• review what equipment, technology and other support is currently provided to employees working from home and assess the potential costs that may arise if employees seek to exercise their entitlement and require the employer to pay the reasonable costs necessary to enable them to do so;
• review work health and safety arrangements for remote workers, including where employees may seek to work from locations other than their primary residence;
• ensure appropriate records are maintained to support decisions concerning workplace attendance and working from home arrangements; and
• ensure managers are brought up to speed with the potential changes and their obligations when responding to work from home notices including timing and substance requirements. 

Importantly, employers should not assume that existing workplace attendance requirements will be sufficient justification under the proposed regime. If enacted, the reforms are likely to place increased scrutiny on decisions requiring employees to attend the workplace and on how employers have chosen to organise work within their businesses.

ABLA will continue to monitor the Bill as it progresses through Parliament and will provide updates as further details become available.

Our team are available to answer any queries this article may raise – please get in touch.