Victoria's Proposed Right to Work from Home: What Employers Need on Their Radar

Under the proposed reforms, employees who can perform their role from home would have a legal right to do so for up to two days per week. The right is intended to apply broadly across the Victorian workforce, including both private and public sector employers, organisations with existing hybrid or office-based models, and small businesses (subject to delayed commencement).

Importantly, the change marks a departure from the current position under the Fair Work Act 2009 (Cth) (FW Act), where employees may request flexible working arrangements only if they meet specific eligibility criteria - such as having caring responsibilities, a disability, or experiencing family or domestic violence - and employers can refuse those requests on reasonable business grounds.

By contrast, the proposed Victorian model would create a general entitlement based primarily on whether the role itself can be performed remotely, rather than on the personal circumstances of the employee.

The Victorian Government has indicated that the new right will sit in the EO Act, rather than industrial relations legislation. This is a significant design choice, likely intended to navigate constitutional limitations arising from Victoria’s referral of industrial relations powers to the Commonwealth.

However, this approach introduces legal uncertainty. Questions remain as to whether a broadly framed “right to work from home” may be challenged as, in substance, a term or condition of employment - potentially creating inconsistency with the FW Act framework.

Even if the legislation withstands constitutional scrutiny, its practical effect is expected to be substantial. The mere existence of a statutory right is likely to shift workplace expectations, increase reputational pressure on employers, and create new avenues for disputes.

Disputes about the new right are expected to follow a two-stage process:

• Initial conciliation through the Victorian Equal Opportunity and Human Rights Commission
• If unresolved, determination by the Victorian Civil and Administrative Tribunal

This represents a different pathway from traditional employment disputes under the Fair Work system and may introduce new procedural and strategic considerations for employers.

5.1 Health and Safety Obligations

A right to work from home does not diminish an employer’s obligations; rather, it extends them. Employers will need to ensure, so far as reasonably practicable, that home work environments are safe, including managing ergonomic risks and psychosocial hazards such as isolation and blurred work-life boundaries.

5.2 Multi-Jurisdictional Complexity

Employers operating across multiple jurisdictions face a particularly complex environment. If Victoria introduces a standalone right that does not exist in other states, employers may need to manage materially different entitlements depending on where their employees are located - or where they are working on any given day.

• Where does a remote worker "work"? An employee based in Victoria but working from a Queensland holiday home, or a NSW employee who chooses to work in Victoria, raises genuine questions about which law applies.
• Enterprise agreements: Many employment conditions are set by enterprise agreements. How a statutory right to work from home interacts with an existing EA (including one that deals with flexible work differently) will need careful analysis.
• Policy consistency: Employers should consider whether to apply a consistent national approach or maintain jurisdiction-specific policies, and what the people management consequences of each approach are.

5.3 Productivity and Performance Management

A right to work from home does not suspend an employer's right to manage performance, but it does change the environment in which performance is managed.

• Employers will need to ensure that performance standards are clearly documented and communicated, and that managers are equipped to manage remote performance fairly and consistently.
• Care should be taken to ensure that performance management decisions are not made (or perceived to be made) on the basis of an employee's exercise of a new statutory right, to avoid a perception of adverse action or discrimination claims.
• Productivity metrics and monitoring tools may be considered, but employers should tread carefully around surveillance obligations and the potential for psychosocial harm from excessive monitoring.

5.4 Complaints and Grievance Risk

The introduction of a statutory right will almost inevitably generate a new category of workplace complaint: disputes about whether the right has been exercised, refused, or effectively denied.

• Refusal of a request to work from home could give rise to a claim under the new legislation, as well as potentially under the FW Act (failure to accommodate a flexible work request) or the EO Act (where a refusal has a disproportionate impact on a protected group).
• Employers should ensure that any refusal is documented, based on genuine and articulable operational grounds, and communicated clearly and promptly.
• Supervisors and line managers will need training on how to handle requests and potential disputes in a legally compliant and consistent way.

Regardless of the final form the legislation takes, the announcement is a prompt for employers to review and refresh their employment policies. At a minimum, the following should be on the review list:

• Flexible work policy (including working-from-home arrangements)
• Health and safety policy - extended to address home working environments and psychosocial risks
• Discrimination and equal opportunity policy
• Performance management policy and associated manager guidance
• Codes of conduct - particularly around out-of-hours contact and availability expectations
• Data security and IT acceptable use policies

Employers should also consider whether their existing enterprise agreements or employment contracts contain provisions that may conflict with or be affected by the new legislation, and take advice accordingly.

Action	Why It Matters
Monitor the bill closely as it passes through Parliament	The final text may differ significantly from current announcements. Definitions, possible exceptions to the rule, and enforcement mechanisms will be critical.
Review existing flexible work policies and WFH arrangements	Ensure they are documented, current and compliant with the law as it changes. Gaps will be exploited in complaints.
Audit health & safety obligations for remote workers	Unaddressed psychosocial and physical hazards in the home environment create exposure.
Train managers on handling WFH requests and refusals	Inconsistent or poorly documented refusals will generate claims. Managers are often the front line of liability – ensure that they are properly trained.
Assess multi-state policy consistency	Employees in different states may have different entitlements. A patchwork approach creates inequality and claims risk.
Take advice on EA and contract interaction	Existing agreements may conflict with or be superseded by the new right. This needs early analysis.
Prepare internal communications strategy	Employees will have questions. A clear and timely internal communication reduces uncertainty and grievance risk.