Introduction

Why legislate what the market has already delivered?

That’s the question many businesses are asking following the Allan Government’s long-foreshadowed work from home (WFH) right being introduced to Parliament just last week.

The Government intends to enshrine a blanket WFH right for eligible Victorian employees, where it’s reasonable to do so and without linking the right to specific personal circumstances such as being a parent or having carer responsibilities.

Put another way, if any Victorian wants to WFH, they can – provided it’s reasonable.

The WFH Right

If the Equal Opportunity Amendment (Work from Home) Bill 2026 (Bill) is passed eligible Victorian employees will enjoy a right to WFH, provided it’s reasonable, for up to:

  • 2 days a week for full-time employees; or

  • an equivalent pro rata period for part-time employees and casual employees employed on a regular and systematic basis.

How the Right Works

To exercise the right, eligible employees must give their employer a written WFH notice that sets out:

  • if practicable, the specific days and times the employee intends to WFH; and

  • if they don’t intend to work from their private residence – the location from which the employee proposes to work.

From there, the ball is in their employer’s court to respond within 21 days.

Before refusing a WFH notice, employers must effectively jump through 3 hoops. They must consider whether it’s reasonable for the employee to WFH:

  • for the days stated in the notice;

  • if they consider those days to be unreasonable, the employer must allow the employee to work on other days or hours of the week where reasonable; and

  • if that is still considered unreasonable, the employer must allow working from home for a lesser period of the week where reasonable (i.e., fewer days or hours as stated in the employee’s notice).

Only after coming to the view that each and all of the above WFH arrangements is unreasonable can an employer then refuse an employee’s exercise of the WFH right altogether. Even then, employers will need to explain why in writing.

Key Battleground: Reasonableness

The reasonableness test in the Bill is probably not what a reasonable person understands it to mean. Instead, under the Bill reasonableness needs to be viewed through the prism of:

  • the inherent requirements of the employee’s role, including whether the job can hypothetically be done away from the office, without onsite equipment, and without face-to-face interactions with clients; and

  • the impact of WFH on the employer, including any “significant” adverse impact on productivity, supervision, professional development or capacity to build relationships, etc.

This means that employers who move to update Position Descriptions to merely state that in-person attendance is one of a position’s inherent requirements will be disappointed. The Bill is far more complex than that. For most office-based positions, a far more nuanced and forensic approach will be required.

Disputes

Disputes regarding the WFH right will be handled through the Victorian Equal Opportunity and Human Rights Commission and the Victorian Civil Administrative Tribunal.

From 1 September 2026, we foresee both bodies being swamped by matters relating to the WFH right. Employers may find themselves just as inundated.

Legislative Quirks and Curveballs

Exemptions

The WFH right doesn’t apply to employees on probation. It’s unclear what “probation” means, how long it goes for, and whether it can be extended. Interestingly, the Bill does not adopt the minimum employment period contained in the Fair Work Act 2009 (Cth) (FW Act).

Further, employees who are otherwise entitled to request flexible working arrangements under s65 of the FW Act are also exempt. This covers employees who are pregnant, have parent or carer responsibilities, have a disability, being aged 55 years or over, or experiencing family or domestic violence, etc., and they want to change their arrangements because of this.

This exclusion appears to be in place to pre-empt a constitutional challenge. Practically for employers (and their Lawyers) it opens the door for possible jurisdictional objections that an employee is not covered by the WFH right under the proposed Victorian legislation and should instead go through the well-trodden path of requesting flexible working arrangements under the FW Act.

Higher Bar for Refusal

Refusing an exercise of the WFH right will be no easy feat.

It appears to us that employers will face a higher hurdle in refusing an employee’s exercise of the WFH right than the familiar “reasonable business grounds” test in flexible working requests under the FW Act. Most of the impacts on the employer, such as lost productivity, must be significant. This means reduced productivity falling short of being “significant” will probably not be enough.

The Cobra Effect

The WFH right, while well-meaning, may come back to bite the very people it aims to benefit.

When businesses realise certain roles can be performed from home, it doesn’t just change where people work but potentially redefine how businesses think about resourcing requirements altogether.

Once hiring decisions are no longer anchored to location, the talent pool extends beyond local borders. That may push employers to cast the net wider and look to comparably capable global talent rather than limiting themselves to local hires.

Final Word

The proposed WFH right is a recipe for disputes.

As it stands, the Bill leaves plenty up in the air. Key terms like “probation”, “private residence” and “significant” are undefined, and there’s no established body of case law to lean on. That means employers will be left feeling their way in the dark for some time.

If the Bill is passed, we expect many employers to be flooded with WFH notices from 1 September 2026 (or 1 July 2027 for small business employers). This is because, unlike the FW Act, the WFH right applies to all eligible Victorian employees and not simply those with certain protected characteristics.

Employers who wish to oppose those notices should get advice early.

Adam Colquhoun (Principal) and Grace Foo (Lawyer)

This article is general information only. It is not legal advice. If you need legal advice, please contact us.