By Yuetao Zhu, paralegal
The Victorian Government has introduced an amendment bill to the Equal Opportunity Act 2010 which provides employees with a legal right to work from home. The proposed work from home (WFH) reforms are scheduled to come into effect across the private and public sectors from 1 September 2026, and from 1 July 2027 for small businesses with less than 15 employees.
What are the changes?
Currently, WFH requests are governed by the Fair Work Act 2009 (Cth), which provides that while work from home can be ‘requested’ in certain circumstances, employers have the right to refuse a WFH request on reasonable business grounds.
The new proposed WFH reforms in Victoria are governed by the Equal Opportunity Act 2010. This provides eligible employees with a ‘legal right’ to WFH, making it difficult for employers to reject the WFH ‘right’.
When can an employee exercise their right to WFH under the proposed reform?
An employee can exercise their right to work from home if:
1. They are an eligible employee
2. It is reasonable for the employee to work from home.
Eligible employees who work full time will have the right to work from home 2 days per week.
An eligible part time employee’s entitlement will be calculated on a pro rata basis.
What makes an employee eligible under the proposed reform?
The definition of ‘eligible employee’ is broad, capturing both permanent and casual employees working regular and systematic hours.
What makes an employee ineligible under the proposed reform?
Employees excluded from the right to WFH are employees:
- on probation;
- employees undertaking an apprenticeship, traineeship, internship, graduate program, work experience program or similar program;
- engaged in a true casual arrangement;
- regulated workers and regulated businesses as defined under the Fair Work Act which include digital labour platform operators, road transport businesses, non-employee workers and services contractors; or
- prescribed by the regulations.
When can an employer refuse a WFH arrangement?
An employer can refuse a WFH arrangement if the employee’s role cannot reasonably be performed remotely.
The Employer must consider:
1. The inherent nature of the employee’s role.
2. Whether the role requires in person attendance at the workplace.
3. Whether the role requires the use of equipment at the regular workplace.
4. Whether the role requires in person interactions with clients or other employees.
Other considerations for refusing a WFH arrangement will include the impact on:
- productivity for the employer;
- safety;
- supervision or training of employees;
- the capacity to build relationships between the employee and clients;
- on customer service outcomes
- on confidentiality or data protection;
- financial costs on the employer that are excessive;
- the arrangement itself is impractical or requires impractical new hiring.
What constitutes ‘home’?
‘Home’ is not limited to the private residence of the employee but may also include other places subject to the agreement of the employee and the employer.
Resolving disputes about WFH arrangements
The proposed reforms for WFH arrangements are Victorian based laws, this means that the Fair Work Act does not apply, and therefore, the Fair Work Commission does not have jurisdiction to resolve work from home disputes. Under the proposed reforms, disputes regarding work from home will be managed by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). If conciliation fails, at the VEOHRC, the dispute may be escalated to the Victorian Civil and Administrative Tribunal (VCAT). This framework is for the employee and there is no basis for employer to bring a claim regarding the right to WFH.
What can Grazia Legal do for you?
- Help you understand the proposed reforms.
- Getting your business ready to manage WFH arrangements and introducing policies and procedures to accommodate WFH arrangements.
- Assist employees with how to make WFH requests.
- Advise employers on whether WFH requests can be rejected and on what grounds.
- Disputes involving WFH requests and arrangements.
Disclaimer: The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please contact Grazia Legal for tailored legal advice.
