Victoria WFH Right vs Fair Work Flexible Request: The Difference

They are two separate regimes under two different laws. The federal Fair Work Act 2009 (Cth) s.65 gives certain employees a right to request flexible working arrangements (which can include working from home) — the employer can refuse on reasonable business grounds. Victoria's scheme is different: it is a proposed substantive entitlement to work from home up to two days per week, created by amending the Equal Opportunity Act 2010 (Vic), with disputes going to VEOHRC and then VCAT rather than the Fair Work Commission.

The simplest way to hold the distinction: the federal right is a right to ask; the Victorian scheme is proposed as a right to have (within limits). The federal right is broad in scope (any flexible arrangement) but narrow on who qualifies. The Victorian right is broad on who qualifies but narrow in scope (working from home only, capped at two days a week).

Status caveat — read this first. The federal s.65 request right is in force today. The Victorian scheme is proposed only. Per the official premier.vic.gov.au release, the legislation is to be introduced to the Victorian Parliament in July 2026, with a commencement date of 1 September 2026. As at 16 June 2026 no bill has been tabled and no bill text has been released, so the detail below describing Victoria is the government's announcement plus legal commentary — not enacted law. Some media and law-firm pages already say the bill has been "introduced"; the primary government source does not. Treat the Victorian regime as expected, not settled.

This is the biggest practical difference. Federal eligibility is gated to specific personal circumstances plus a service requirement. The proposed Victorian entitlement is keyed to the role, not the person's circumstances.

Not yet known for Victoria: whether probationary employees are excluded, how "regular" casual is defined, and how "reasonably performed from home" will be tested. Commentary infers a balancing test (role requirements, operational needs, employee circumstances, work health and safety), but no statutory definition has been published.

Unsure which categories you fall into federally, or whether your Victorian role might qualify? Our flexible work request tool and Victorian WFH eligibility checker walk through each test.

Under the federal regime the process is defined and operating now. An employee makes a written request; the employer must respond in writing within 21 days, can only refuse on reasonable business grounds, and must first genuinely discuss the request and try to reach agreement. If refused, the employer has to explain the grounds and any alternative arrangements considered.

For Victoria, the lawful grounds for refusal are not yet known. They do not appear in any primary government source. Because the right is proposed to sit inside the anti-discrimination framework of the Equal Opportunity Act 2010 (Vic), lawyers expect any refusal test to be a higher bar than the federal "reasonable business grounds" test — but that is commentary, not legislated fact. Do not assume a specific list of refusal grounds applies until the bill is published.

For a full walkthrough of the federal request-and-refusal process — including what to do if your request is knocked back — see our guide to making a flexible work request in Australia.

Different regimes, different forums. This follows directly from which law each right lives under.

• Federal (s.65): disputes go to the Fair Work Commission. The FWC can conciliate and, since 2023, can also arbitrate and make binding orders about flexible work requests.
• Victoria (proposed): disputes go to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for conciliation first, then to the Victorian Civil and Administrative Tribunal (VCAT) if unresolved. This is confirmed by the Premier's release. It sits in the equal-opportunity framework, not the Fair Work system.

Whether a Victorian employee could choose between forums, or whether the two paths overlap, is untested — see the constitutional question below. Remedies and penalties available at VCAT (for example, orders to grant the arrangement, compensation, or adverse costs) are inferred from the Equal Opportunity Act's existing machinery and have not been specified in any bill.

Victoria cannot amend Commonwealth industrial law. The Fair Work Act 2009 (Cth) is federal, so a state parliament has no power to add to it. To create a work-from-home right at all, Victoria is using the one lever it does control — its state equal-opportunity (anti-discrimination) jurisdiction under the Equal Opportunity Act 2010 (Vic).

That single structural choice explains almost every difference in this article:

• It is why disputes route through VEOHRC and VCAT, not the Fair Work Commission.
• It is why eligibility is framed around the role and broad employee coverage rather than the s.65 caring/age/disability categories.
• It is why lawyers expect a higher refusal bar — discrimination-law tests tend to be harder for a respondent to satisfy than an industrial "reasonable business grounds" test.

If you are a Victorian employee, the federal s.65 right to request applies to you now, assuming you meet a qualifying category and have 12 months' service. The proposed Victorian entitlement would, if enacted as announced, apply from 1 September 2026 for employers with 15 or more employees, and from 1 July 2027 for workplaces with fewer than 15 employees.

The small-business date is a timing deferral, not an exemption — the Victorian Government has expressly ruled out a small-business exemption. (Whether the 15-employee threshold is measured by headcount or full-time-equivalent is not yet confirmed.)

Whether a Victorian worker covered by both could rely on either, or pick the more favourable forum, has not been resolved — and may turn on the constitutional question below. The Victorian Government has promised guidance (including on pro-rata treatment for part-time and casual employees) before 1 September 2026; it has not yet been released.

This is the single largest uncertainty, and it is why the contrast between the two regimes is more than academic. Most Victorian private-sector workers are national-system employees covered by the Fair Work Act. There is a genuine legal question whether a state law creating a work-from-home entitlement is invalid for those employees under section 109 of the Constitution (state law inconsistent with a valid Commonwealth law gives way), given that section 26 of the Fair Work Act is intended to exclude state industrial laws.

The government has deliberately housed the right in the Equal Opportunity Act precisely because anti-discrimination laws can validly co-exist with the federal system, which reduces that risk. But legal commentators and business groups expect a constitutional challenge if the scheme passes as announced — the right may not survive for Fair Work-covered employees, and its interaction with awards and enterprise agreements is also untested.

Practical takeaway: until the bill is tabled (expected July 2026), debated, and passed — and until any challenge is resolved — the federal s.65 right to request is the one you can actually rely on in Victoria today. We will update this comparison as the bill progresses. For the Victorian scheme on its own, see our explainer on the proposed Victorian work-from-home law, or ask a specific question through our AI workplace advisor.