The Victorian Government has introduced proposed legislation that would, if enacted in its current form, give many eligible employees working in Victoria a statutory entitlement to work from home for up to two days each week, where remote work is reasonable having regard to their role and the employer’s circumstances.
The proposed amendments to the Equal Opportunity Act 2010 (Vic) have attracted significant attention. However, they are not yet law. At the time of writing, the Bill is still progressing through the Victorian Parliament, remains subject to debate, and may be amended before any changes take effect.
If enacted in its current form, the operative provisions are proposed to commence on 1 September 2026. The Bill also appears to provide a later application date of 1 July 2027 for employers below the prescribed small-employer threshold. Employers should monitor the final form of the legislation carefully, including how any employee-count threshold is calculated and when the obligations will apply to their business.
Although the proposed reforms have not yet become law, employers should not wait until the last minute to prepare. If passed, the changes would require many organisations to rethink how they assess work from home arrangements, moving away from broad workplace attendance rules and towards a more structured, role-based assessment process.
What would change?
The existing flexible work provisions under the Fair Work Act 2009 (Cth) already give eligible employees a statutory right to request flexible working arrangements. That regime includes consultation obligations, a 21-day response period, limits on refusal, written reasons, and access to Fair Work Commission dispute resolution in certain circumstances.
The Victorian proposal would operate differently. If passed, it would create a more specific work from home entitlement for eligible employees within its scope, rather than requiring an employee to first establish one of the recognised personal circumstances under the Fair Work Act flexible work provisions.
In practical terms, the focus would shift. Instead of asking only whether an employee has a qualifying reason to request flexible work, employers would need to assess whether working from home is reasonable for the employee’s role and whether there is a legitimate basis to refuse or limit the proposed arrangement.
The reforms may also require employers to meet certain reasonable costs necessary to implement an approved work from home arrangement, such as essential equipment, software or secure access to workplace systems. The precise scope of any cost obligation will need to be assessed against the final wording of the legislation.
Employers should also monitor how the final legislation addresses its interaction with the Fair Work Act 2009 (Cth), particularly for national system employers and employees who may already have flexible work rights under Commonwealth law.
Who would be covered?
The proposed entitlement would apply to many eligible employees whose employment falls within the territorial scope of the Victorian legislation. The precise coverage will depend on the final form of the Bill.
As currently proposed, there are several important exclusions. These may include:
- employees serving a probationary period;
- apprentices, trainees, interns and graduate program participants;
- irregular casual employees;
- independent contractors, sole traders and platform workers who are not employees; and
- employees who are already eligible to request flexible working arrangements under the Fair Work Act 2009 (Cth) because of circumstances such as caring responsibilities, disability, pregnancy, age, family and domestic violence, or other recognised grounds.
That last exclusion will be important in practice. Employees who already qualify to make a flexible work request under the Fair Work Act may need to rely on the Commonwealth flexible work regime rather than the proposed Victorian work from home entitlement.
For eligible employees in roles where remote work is reasonable, the proposed entitlement would be up to two days working from home each week. The Bill should be checked carefully for how the entitlement applies to part-time employees and regular casual employees, including whether any pro rata calculation applies.
Will employers be able to refuse?
Employers would be able to refuse or limit a proposed work from home arrangement, but only where working from home would not be reasonable having regard to the relevant statutory criteria.
The proposed legislation recognises that remote work will not be appropriate for every role. Depending on the final wording of the Bill, employers may be required to consider factors such as:
- the requirements of the employee’s role;
- productivity and operational efficiency;
- workplace health and safety;
- supervision, training and professional development needs;
- client, customer or service delivery requirements;
- confidentiality, privacy and cybersecurity;
- financial cost;
- access to necessary systems, equipment and information;
- team collaboration and operational coverage; and
- whether accommodating the arrangement would require impractical changes to the business.
Importantly, employers should not approach the assessment as an “all or nothing” exercise. If two days working from home is not reasonable for a particular role, employers should consider whether a lesser or alternative arrangement would be reasonable.
For example, a role may not support two fixed work from home days each week, but may support one remote day, occasional remote work, remote work on particular duties, or a hybrid arrangement linked to operational requirements. A decision to refuse the full entitlement should be supported by clear, role-specific reasons.
Process and dispute resolution
Employees would need to submit their proposed work from home arrangement in writing. This would likely include the days they intend to work remotely and, where relevant, the location from which they propose to work.
Employers would then have 21 days to respond in writing. Depending on the circumstances, the employer may:
- approve the proposed arrangement;
- refuse the arrangement on permitted grounds, with reasons; or
- propose an alternative arrangement.
Disputes would first be referred to the Victorian Equal Opportunity and Human Rights Commission for conciliation. If unresolved, they may proceed to the Victorian Civil and Administrative Tribunal for determination.
Employers should assume that decisions will need to be capable of later scrutiny. That means any refusal, limitation or alternative proposal should be supported by contemporaneous records explaining the operational, role-based and evidentiary basis for the decision.
What should employers be doing now?
Although the legislation has not yet passed, employers with employees in Victoria should use this period to review their existing arrangements and identify any areas requiring attention.
In particular, employers should proactively consider the following steps.
1. Review work from home and hybrid work policies
Employers should review existing work from home, hybrid work and office attendance policies to ensure they reflect current business needs.
Policies that rely on blanket attendance requirements, such as mandatory office attendance for all employees on fixed days, may need to be revisited. If the reforms are enacted, employers will likely need to justify attendance requirements by reference to the role, the nature of the work and operational requirements.
2. Assess roles individually
Employers should begin identifying which roles genuinely require workplace attendance and why.
This assessment should consider:
- tasks that must be performed on site;
- client or customer-facing requirements;
- supervision and training needs;
- access to equipment, records or secure systems;
- confidentiality and cybersecurity risks;
- team coordination requirements; and
- measurable impacts on productivity, service delivery or operational efficiency.
A role-based assessment will be more defensible than a general preference for employees to attend the workplace.
3. Document operational reasons
When assessing individual roles, where an employer considers that a role cannot reasonably be performed remotely for two days per week, the reasons should be documented.
Those reasons should be specific. For example, it will usually be preferable to record that remote work would prevent the employee from performing particular duties, accessing particular systems, supervising particular staff, or meeting particular service obligations, rather than simply stating that the business prefers in-person work.
4. Train managers
Managers will play a central role in assessing requests and implementing any approved arrangements.
Employers should consider preparing training for managers on:
- the proposed reasonableness criteria;
- the need to avoid blanket refusals;
- the importance of consultation;
- how to identify and document operational reasons;
- consistency in decision-making;
- discrimination, adverse action and victimisation risks; and
- the requirement to respond within the proposed statutory timeframe.
5. Develop a consistent assessment framework
Employers should develop a consistent internal framework for assessing work from home arrangements.
This may include:
- a standard request form;
- a manager assessment checklist;
- guidance on relevant statutory criteria;
- escalation processes for complex requests;
- template response letters;
- a process for proposing alternative arrangements; and
- a centralised record-keeping system.
Consistency will be important to reduce the risk of arbitrary or unequal decision-making across different teams or locations.
6. Review technology, cybersecurity and confidentiality arrangements
Employers should assess whether their systems can adequately support remote work.
This includes reviewing:
- secure remote access;
- multi-factor authentication;
- device management;
- software licensing;
- confidential document handling;
- privacy and data protection protocols;
- cyber incident response procedures; and
- employee obligations regarding the use of personal devices or home networks.
Where confidentiality or cybersecurity is relied on as a reason to refuse or limit remote work, employers should be able to explain why the risk cannot reasonably be managed.
7. Review WHS/OHS arrangements
Employers continue to have work health and safety obligations when employees work from home.
Employers should consider:
- home workstation assessment processes;
- ergonomic guidance;
- incident and hazard reporting procedures;
- psychosocial risk management;
- working hours and availability expectations;
- supervision and communication protocols; and
- workers compensation implications for remote work.
A clear remote work safety framework will assist both compliance and decision-making.
8. Consider cost implications
Employers should consider the financial implications of supporting approved work from home arrangements.
This may include:
- laptops, monitors and peripherals;
- software access;
- secure network access;
- communication tools;
- ergonomic equipment;
- IT support; and
- any other costs required by the final legislation.
Employers should avoid assuming that all home office expenses will necessarily be reimbursable. The obligation will depend on the final wording of the legislation and the particular arrangement approved.
9. Consider contracts, enterprise agreements and workplace practices
Employers should consider whether the proposed legislation will give rise to a need to review employment contracts, enterprise agreements, policies and established workplace practices that require office attendance.
In particular, employers should consider whether existing documents contain clauses such as:
- fixed workplace location clauses;
- mandatory office attendance obligations;
- consultation obligations;
- flexibility clauses;
- technology-use obligations;
- confidentiality and privacy obligations; and
- provisions dealing with equipment, expenses and return of property.
Any changes should be managed consistently with applicable contractual, statutory, award or enterprise agreement obligations.
10. Prepare for disputes
Employers should prepare for the possibility that work from home decisions may be challenged.
Good preparation will include:
- clear written reasons;
- evidence of consultation;
- records of role assessments;
- records of alternatives considered;
- consistent application of policy;
- manager training; and
- internal review or escalation mechanisms.
A well-documented decision-making process will be critical if a matter proceeds to external conciliation or tribunal determination.
Looking ahead
If the proposed reforms are enacted, employers will need to move beyond broad policies requiring employees to attend the workplace and instead undertake a more considered, evidence-based assessment of whether working from home is reasonable for each role.
The Bill may yet be amended as it progresses through Parliament, including in relation to eligibility, exclusions, commencement, employer obligations, costs and dispute resolution. Employers should therefore monitor the legislation closely and be ready to update their policies and internal processes once the final form is known.
Employers who begin preparing now will be better placed to implement any changes smoothly, respond to requests within the required timeframe, and minimise the risk of inconsistent decision-making or future disputes.
As always, the team at Emplawyer are here and ready to help answer any questions you may have.
