How the New Victorian Work From Home Laws Will Affect Your Business

WHAT ARE THE NEW VICTORIAN WORK FROM HOME LAWS? 

The key aspects of the new legislation, enshrined in the Equal Opportunities Act 2010 (Vic), which employers should consider are as follows:

1. The amendments will treat small businesses (less than 15 employees) and large businesses slightly differently. The new employee rights will come into effect for large businesses on 1 September 2026 and will be delayed for small businesses until 1 July 2027 to allow time for policy and structure to be developed.

2. The amendments will require that employees distinguish between roles which can be reasonably conducted remotely and roles that cannot. From the outset, this burden will fall on employers to establish in consideration of several aspects which may include:

a. the tenure of an employee (whether they are still in their probation period or still being onboarded);

b. the confidentiality of the work which an employee will be conducting; and

c. the productivity and output of an employee when they are working remotely. 

3. All disputes will be heard before the Victorian Equal Opportunity and Human Rights Commission for conciliation, and if the resolution is achieved, then be referred to the Victorian Civil and Administrative Tribunal (VCAT). 

THE RIGHTS OF EMPLOYERS/EMPLOYEES UNDER THE EXISTING LEGISLATIVE FRAMEWORK 

In conjunction with the proposed amendments to the Act, employers must remain vigilant to the existing legislative frameworks and rights for employees. Noting that this amendment will be the first of its kind, it is challenging to interpret how the amendments will fit into the current Fair Work framework, however, employers should note that a request to work from home can be rejected in the following circumstances: 

1. the request is too costly to facilitate;

2. it being too impractical to change other employees’ working arrangements to facilitate the request; 

3. the request yielding a significant decrease in the employees efficiency or productivity; and/or 

4. would have a significant impact on customer service.  

Despite employers retaining the ability to deny the request to work remotely due to reasonable business grounds, it is relevant to consider that rejecting a request will likely be the largest cause for disputes. Therefore, when considering whether or not an employee can reasonably work from home, employers should ensure that the overreaching business needs are truly more prominent than an employee request to work from home. 

The most significant shift for employees is the interplay that the amendments will have with regard to a flexible working arrangement. Pursuant to s 65A of the Fair Work Act 2009 (Cth) (the current relevant legislative framework), employees are only entitled to request a flexible working arrangement if the employee is: 

1. pregnant;

2. the parent or has responsibility for the care for a child who is of school age or younger; 

3. a carer in accordance with the Carer Recognition Act 2010;

4. disabled;

5. 55 or older;

6. experiencing family and domestic violence; or

7. providing support to an immediate family member who is experiencing family and domestic violence. 

However, with these amendments, any Victorian employees will now have the right to make a request for a flexible working arrangement (limited to working from home), as long as their role can reasonably be performed remotely. 

HOW THE NEW LAWS WILL AFFECT YOUR BUSINESS? 

As previously noted, the amendments to the Act will treat small and larger organisations in two different categories. From 1 September 2026, the new statutory rights for employees will come into effect, however, this enactment date will only be relevant to organisations which have 15 or more employees. During this time, business owners who employ more than 15 employees will have the obligation to navigate the new legislation and prepare policies, systems and procedure for their organisation. 

Within the same period, employers will have the burden of ensuring compliance without having a clear understanding of how the legislative framework will be managed. Therefore, it is prudent that employers provide employees with their statutory rights whilst balancing their simultaneous right to reject a work from home request in the instance that the employee cannot reasonably conduct their role remotely. 

The staggered approach which the Victorian Labor Government has adopted is an attempt to allow small businesses to develop their internal policy and structure. The amendments to the Act provide relief to small businesses by delaying the commencement of the new work from home rights until 1 July 2027.  

This relief for small businesses will allow additional time for new policy to be developed in accordance with how the relevant commissions will manage disputes. Within this period, it will be prudent for small business owners to turn their attention to how disputes are resolved in order to mitigate their own risk. This approach will allow policy drafters to understand the potential risks that arise when enacting company specific policy, which best suits the needs of the business.  

HOW TO RESOLVE DISPUTES ABOUT EMPLOYEES’ RIGHTS UNDER THE NEW LAWS? 

As mentioned previously, in connection with the new laws, the Victorian Labor government proposes to ensure that there is a clear pathway for disputes which arise between employers and employees. As the new rights will be enacted through an amendment to the Act, all initial disputes will go before the Victorian Equal Opportunity and Human Rights Commission for conciliation, then, if the conciliation is unsuccessful, the matter will then be referred to VCAT.  

However, in order to mitigate the risk of disputes arising and the need for third party intervention, employers should review and amend their internal policy to ensure that:

1. internal work from home policy reflects the relevant statutory provisions so employees who can reasonably work from home may do so; 

2. internal policy sets out a dispute resolution system to allow for meaningful discussion surrounding the request to take place; and  

3. employees are aware of their statutory rights as well as the rights of employers to manage their request, subject to overarching reasonable business grounds. 

Watson Webb's employment law team has the depth and experience to guide clients through every stage of the employment relationship. We work with both employers and employees, assisting with changes in legislation, and the preparation and review of employment documentation, including contracts and workplace policies. We act in both preventative and dispute resolution contexts, and our practice extends to Victoria. 

Disclaimer 

This article is provided for general information purposes only and does not constitute legal advice. It is not intended to address the specific circumstances of any individual or business, and reliance should not be placed on it as a substitute for obtaining legal advice tailored to your particular situation. Legal advice should be sought before taking steps in relation to a request to work remotely in accordance with the proposed amendments to the Equal Opportunities Act 2010 (Vic).