The Victorian Government has announced an intention to legislate a right to work from home for up to two days per week which will operate effectively from 1 September 2026 and 1 July 2027 for small businesses. What does this mean in reality and what should organisations be doing in preparation for the legal changes?

Is this legislation good?

This legislation is absolutely unnecessary and is solely motivated by an unpopular government desperately trying to garner votes at the upcoming State election.

Victoria transferred its workplace relations powers to the Commonwealth decades ago and matters like this should and are being dealt with in the federal jurisdiction. For example:

• Certain categories of employees already have statutory rights to request a flexible working arrangement (which can include working from home) and have access to the Fair Work Commission in the event of a dispute with their employer over that request
• All modern awards have provisions on Individual Flexibility Arrangements and Requests for Flexible Working Arrangements and Facilitative Provisions which provide a variety of negotiable flexible arrangements
• During COVID lockdowns, modern awards were varied to specifically address the question of working from home through additional flexibilities
• The Fair Work Commission is currently running a case on model clauses for working from home arrangements 

So the question of working from home arrangements is being comprehensively dealt with in the jurisdiction which should have carriage of it.

The Allan Government is electing to use the Equal Opportunity jurisdiction to pass the legislation  which will just mean that there is an extra jurisdiction that we have to deal with because it will still be part of the Fair Work system too.  

Smart employers are already offering flexible work arrangements including WFH options where they can make that work in practice. Even the Premier acknowledges that “more than a third of workers – including 60 per cent of professionals – regularly work from home”.

Add all of that up and that’s why the legislation is just a bad idea on so many counts.

Existing rights to request flexible working arrangements

Employees who have clocked up 12 months service with an employer already have a statutory right to request a flexible working arrangement which can only be refused on reasonable business grounds if they:

• are pregnant
• are the parent, or have responsibility for the care, of a child who is of school age or younger
• are a carer (within the meaning of the Carer Recognition Act 2010)
• have a disability
• are 55 or older
• are experiencing family and domestic violence, or
• are caring for or supporting an immediate family or household member who requires care or support because they are experiencing family and domestic violence.

So a fair slice of your workforce probably already have these rights – just consider:

• How many of your people are parents with children up to 17 or 18 years old and still at school?
• How many of your people might have ASD or ADHD or Tourettes or dyslexia or other neurodivergent conditions that could be classified as disabilities? Or other forms of disability?
• How many fall into one of those other categories?

Admittedly, the request has to be related to the particular attribute that the employee is seeking flexibility for (eg parental or carer requirements).  

But does this existing right mean that this legislation perhaps doesn’t have as big an impact as you thought might be the case?

What are reasonable business grounds for refusal of requests?

According to the Fair Work Ombudsman, what counts as reasonable business grounds for refusing a request for flexible working arrangements will depend on the individual circumstances, including the nature and size of the business, the employee’s role and duties and the requested arrangements. Examples of reasonable business grounds include but are not limited to:

• cost – the requested arrangements would be too costly for the employer
• capacity – there’s no capacity to change the working arrangements of other employees to accommodate the request
• practicality – it would be impractical to change the working arrangements of other employees, or take on new employees, to accommodate the request
• inefficiency or impact – the requested arrangement would be likely to result in significant loss in efficiency or productivity, or have a significant negative impact on customer service.

We have yet to see the detail of the proposed legislation and it doesn’t sound like we will for a few months yet but hopefully it will not be inconsistent with what we understand to be reasonable business grounds. 

And if the job really can’t be done from home?

There are lots of jobs that can’t be done from home and there are going to be people who resent the fact that others get that flexibility and they can’t have it.

We have already heard the Victorian Police Association flag that they want some compensation for their members because they can’t access that workplace right. We might see that come up as a claim in enterprise agreements.

Think about ways that you might be able to offer this people some flexibility eg an RDO or a 4 day week or flexible starting times  or ….  talk about it. 

What should you be doing?

No doubt, you are hearing from lots of lawyers and consultants that you need to rush off and review your flexible working or WFH polices and procedures.

Before you do that, let’s have a little reality check. We haven’t seen the legislative detail yet but it won’t be long after we do that it takes effect so what can we do now to prepare.

Remember that positive duty to eliminate or reduce risks from psychosocial hazards that legally took effect in Victoria on 1 December 2025?  There are a few hazards that are in play here like, for starters:

• Change management
• Support
• Remote or isolated work
• Organisational justice

That positive duty means that you need to consider the question of how you ensure that employees are able to competently perform their roles in a psychologically, emotionally and physically safe manner.

So here are some questions for you to think about: 

1. If you currently have working from home arrangements in place, what is working well and what needs improvement and why (in each case)?
2. Looking at the various roles in your organisation, are there any that cannot be done from home and why or are there ones where some functions can be but others can’t and why? 
3. Looking at your workforce, how many of your people already have a statutory right to request a flexible working arrangement?
4. If you have been insisting on people coming to work rather than working from home, what are the reasonable business grounds that you would be relying on for refusal of a WFH request and would they stand up? That is, are they really reasonable at law? Consider position by position and employee by employee.
5. If you have people whose jobs simply cannot be done from home, what flexibilities might you be able to offer them so that they feel like you recognise their needs too?
6. Bearing in mind the real obligations that employers have to properly consult people about matters that affect them under both workplace relations and workplace health and safety law, what consultative processes do you have in place to do that at organisational, team and individual levels and how well do they work?
7. What internal processes do you have in place for people to raise grievances if they have concerns about your policies or their particular situation and how you are dealing with that and again how well do they work?
8. How do you integrate your WHF practices into your performance and development management processes?
9. What support and training and resources do your line managers and supervisors need to effectively play their parts in the process in a psychologically safe way for them?
10. Then, once you have been through all of these steps and you have seen what the new legislation requires (expected in July), have a look at what you need to do with your policies and procedures.

These are all questions that should have been considered in relation to exisiting rights that workers have – the new legislation just gives us another reason to ask them. 

Our Practice Leader, Peter Maguire, is available to facilitate discussions with your management group or your Safety or Consultative Committee to work through these questions and tailor the right approach for your business and your people.  If you would like to know more about this, please let us know via the Contact Form below.