Background

The Victorian Government’s promise had been that workers who could do their jobs from home would have a guaranteed right to work from home for at least 2 days per week effective from 1 September 2026 for businesses with 15 or more employees. That has now been deferred to 1 July 2027.

Employers were also going to be liable for the costs of enabling employees to work from home with software, hardware, secure connections. That has reportedly been scrapped altogether.

That is good news but:

1️⃣ In the lead-up, a lot of the commentary has been about how this now deferred legislation interacts with employees’ existing rights to request flexible working arrangements (including WFH) under the Fair Work Act.
2️⃣ And these rights have been strengthened in the past couple of years with increased emphasis on consultation and access to the FWC for mediation, conciliation and arbitration if there is a disagreement between employer and employee.
3️⃣ About 60% of Australian workers have these rights (eg parents and carers and workers over 55 years of age and pregnant employees and those with disabilities and workers dealing with or supporting someone in a domestic violence situation) and there is no small business exemption.
4️⃣ There is no limitation like a guaranteed 2 days a week either – it could be every day!
5️⃣ How prepared would you be if one of your employees made that request tomorrow?
6️⃣ AI is already telling people about this other option and it will go there more with the Victorian legislation shelved for the moment.
7️⃣ If you haven’t done your homework. you might struggle to prove that rejection of a request was legitimately “on reasonable business grounds”, right?

So it really isn’t off the table, is it?

What else is in play?

Firstly, there is the Victorian election coming up in November and, if Labor doesn’t secure a majority government, the WFH Mandate legislation might well be dead.

Secondly, there is a major case running in the Fair Work Commission on development of a Work From Home provision for the Clerks – Private Sector Award 2020.  It looks like there is a way to go yet before we get an outcome there but watch this space as this is a test case and we can expect it to flow on to other awards.

Thirdly, we might see things cross over into the WHS jurisdiction through the positive duty to eliminate or reduce risks from psychosocial hazards like poor change management, poor support, poor job control, lack of organisational justice and more.

How can we help?

There are multiple jurisdictions in play here and that makes things complicated – we can help you to sort through those and come up with the right policy settings and workplace practices.

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