Markets 
Working from home is a triggering topic for many Victorians, yet the state government keeps going back there. During the COVID-19 pandemic, the government exercised emergency powers to force workers to remain at home, imposing lockdowns across 2020 and 2021 that totalled 262 days. In 2026, it is using workplace laws to let them stay there.
Despite the alarm these proposed laws have generated among business owners and managers, the fine print suggests they may have very little practical impact, and may never take effect at all.
If passed by parliament, the Allan government’s proposal to enshrine a right to work from home in Victoria’s Equal Opportunity Act would give Victorian employees who can work from home the legal right to do so two days a week, with part-time employees entitled to a pro rata equivalent. An employee can exercise the right by providing written notice. The employer must respond within 21 days and is required to approve the request unless it is not reasonable to do so. Employers must also meet the reasonable costs of enabling remote work, including essential equipment and secure system access.
The business community has reacted with concern. But even if enacted, these laws are likely to be found unconstitutional. Victoria referred its industrial relations powers to the Commonwealth in 1996. State legislation purporting to regulate employment conditions, hours of work and remote access arrangements is likely to conflict with the Commonwealth Fair Work Act 2009. Where such a conflict exists, section 109 of the Constitution renders the inconsistent state law inoperative to the extent of the inconsistency. Several business lobby groups are already considering a High Court challenge.
The government’s attempt to sidestep this difficulty by embedding the right in human rights legislation is unlikely to withstand scrutiny. The Equal Opportunity Act exists to protect Victorians from discrimination on the grounds of characteristics they did not choose and cannot change, such as age, race, sex and disability – attributes that go to the core of a person’s identity. Australian courts have determined that a human right is an inalienable entitlement rooted in humanity itself, possessed independently of any legal system, society or special relationship, sufficient to allow a person to live with dignity and engage freely in public life on equal terms with all others.
Working from home belongs to a different order entirely. It is a workplace arrangement: negotiable, variable and contingent on the nature of the role. To place it alongside race, sex and disability is not to elevate working from home but rather to diminish other rights.
If this logic is accepted, one must ask where it ends. A right to bring pets to work? A right to set one’s own hours? A right to work remotely from another country? Each sounds extreme, but each flows from the same reasoning the government is asking parliament to endorse. Once a government acquires the power to declare workplace preferences to be human rights, there is no principled basis for denying the next government the same latitude. This is a significant transfer of power away from employers, courts and the common law.
Even if these laws survive constitutional challenge, they are unlikely to cause workplace bedlam. There are many grounds on which requests can reasonably be refused: where the job demands physical attendance, specific on-site equipment, or in-person interaction with clients or the public; where working from home would result in productivity loss, safety risks, impaired supervision, diminished stakeholder relationships, confidentiality or data protection risks, excessive costs or impractical staffing changes. Of particular note is the ground permitting refusal where the request would require making “changes to the working arrangements of the employee or other employees that are impractical”, a formulation capable of being invoked by almost any employer in almost any context.
In practice, the class of employees who could successfully invoke these laws may be considerably narrower than the headlines suggest. Teachers, police officers, tradies, security guards, retail employees, hospitality workers, childcare and aged care workers and doctors could plainly not access them. Senior managers and those handling confidential information may similarly face refusals. Employees with flexibility rights recognised under the Fair Work Act, such as carer responsibilities, cannot make concurrent requests to work from home relying on the same grounds. The exceptions built into the legislation address most of the concerns raised by critics.
The more likely casualties will be the Victorian Human Rights Commission and the Victorian Civil and Administrative Tribunal, where disputes will ultimately be resolved. Victoria has approximately 3.6 million employees. If even 1 per cent contest a refused or modified request after the laws take effect on September 1, that translates to 36,000 new claims landing in jurisdictions already severely backlogged.
None of this is to suggest that working from home deserves no protection. But that is precisely the point. Meaningful protections for flexible working arrangements already exist under the Fair Work Act. The Allan government may have identified a contemporary issue at the heart of modern workplaces, but what is being proposed is not a necessary reform but a political exercise that prioritises headline reform over constitutional and legal validity. The alarm it has generated may prove to be the most consequential thing about it.
Paul O’Halloran is a Partner and Head of Office at Dentons Australia.
The Opinion newsletter is a weekly wrap of views that will challenge, champion and inform your own. Sign up here.
Paul O’Halloran is a partner and accredited specialist in workplace relations at law firm Dentons.From our partners
Read the full article here
