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Blistering legal advice from two barristers will underpin a High Court challenge to Victoria’s working-from-home laws from state business groups, as several of the country’s largest property companies are highly critical of Labor’s plan.
Premier Ben Carroll is looking to pass the bill – which will permit most employees the right to work from home two days a week – in parliament this week with some pro-business amendments. However, business groups have again said they are prepared to launch a legal challenge if the bill passes before the state election in November.
“There’s no doubt that there will be a constitutional challenge by employer groups to this legislation if it goes ahead, and we fully expect that it will be a very strong and likely successful challenge,” said Tim Piper, chair of the Victorian Congress of Employer Associations and Victorian head of the Australian Industry group.
Piper said he had been approached by “many companies” inquiring and offering to resource a constitutional challenge.
“We have a duty to our members to make sure that legislation passed in Victoria is constitutionally valid and economically reasonable. This one is neither.”
Carroll said that flexible work “attracts the best talent in Victoria, and it gets women back in the workforce”.
The premier also said that while the government had heard the message that “work from home works” loud and clear, he acknowledged that “laws need to work for business, too, because the reality is if it’s not practical for employers, the law won’t last”.
The High Court threat comes as independent legal advice given to the Property Council of Victoria suggests the bill is probably unconstitutional and would be ineffective if it passed parliament.
Lawyers Nick Wood, SC, and Leigh Howard on Monday said Labor’s plan to amend Victoria’s anti-discrimination laws to enshrine working from home as a protected attribute alongside race, sexuality and gender clashed with the federal Fair Work Act. The Constitution states that when a state law is inconsistent with a federal law, it becomes invalid.
“In our view, the WFH Bill is inconsistent with the Fair Work Act, and will therefore be inoperative if it is enacted,” the lawyers advised the Property Council.
“There would be no question of whether or not part of the WFH Bill is able to be preserved; the entire scheme that is established by the WFH Bill would be inoperative.”
They also said there were multiple red flags in the bill, including that it would create a potentially unfair, two-tiered system for workers. Their full legal advice was not provided to The Age and is commercial in confidence pending a High Court challenge.
Property Council Victoria executive director Cath Evans said Wood and Howard’s findings should prompt the government to re-think its policy.
“On the basis of the legal advice we have received, the Victorian public is being sold a very costly lemon,” Evans said.
“The government has a choice: listen to the legal concerns, withdraw the bill and give businesses certainty, or push ahead with legislation that could create prolonged costly legal challenges.”
Legal experts have previously cast doubt over whether the proposed working-from-home law would interfere with federal industrial relations powers and leave it vulnerable to a High Court challenge.
Businesses have also repeatedly challenged Carroll’s assertion that the bill would attract talent into the state, and instead say it would push jobs and investment out.
Peter Menegazzo, chief executive of real estate investment manager Investa, said on Monday that the legislation was already deterring investors.
“The state government’s working-from-home legislation is not going away … so, Melbourne is just not a buy for us at the moment,” he told The Australian Financial Review Property Summit.
If the bill passes parliament, it would apply to full-time employees, as well as part-time and regularly employed casuals on a pro rata basis. Employers would also be compelled to pay “reasonable costs” to enable their staff to work remotely.
Business groups have broadly agreed to a number of amendments with the government during a series of meetings, including on Friday last week.
This includes broadening the grounds on which businesses can refuse a working-from-home arrangement, strengthen employers’ ability to manage OH&S obligations, tighten the definition of reasonable employer costs, and give the Victorian Equal Opportunity and Human Rights Commission powers to dismiss frivolous complaints from employees.
Shooters, Fishers and Farmers Party MP Jeff Bourman plans to refer the bill to a parliamentary committee, which would delay the legislation until the next term of government. However, it is not clear if Bourman has sufficient support from MPs in the upper house to follow through on his plan.
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Angus Delaney is a state political reporter at The Age. Email him at angus.delaney@theage.com.au or contact him securely on Signal at angusdelaney.31Connect via email.From our partners
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