Victoria WFH Right vs Fair Work Flexible Request: The Difference

Update, 12 September 2026: on 10 September the Legislative Council voted 18–17 to refer this bill to a select committee reporting by 20 October 2026, and its second reading is deferred until then. With one sitting week left before the 28 November election and the Premier ruling out an extra week, the bill is unlikely to pass this Parliament. Nothing below is in force. Full analysis: Victoria's work from home law has stalled — is it legal, and does it have to pass the High Court?

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 substantive entitlement to work from home two days per week (pro rata for part-time and casual employees), 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 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, two days a week).

Status caveat — read this first. The federal s.65 request right is in force today. The Victorian scheme is not yet law. The Equal Opportunity Amendment (Work from Home) Bill 2026 was introduced to the Victorian Parliament on 16 June 2026 and has passed the Assembly second reading, but it has not passed both houses and has not received Royal Assent. As at 19 July 2026 it remains before Parliament, with commencement deferred on 11 August 2026 from 1 September 2026 to July 2027. Treat the Victorian regime as proposed-but-not-yet-enacted: the detail below reflects the bill as introduced, which can still change before it passes.

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

Still not settled for Victoria: 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 that has not been settled.

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 still not settled. Because the right sits 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 settled law, and the standard VCAT would actually apply has not been tested. Do not assume a specific list of refusal grounds applies until the bill passes and the test is settled.

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 (bill before Parliament): 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 and unchanged in the bill. 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. The 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 confirmed for the new right.

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 Victorian entitlement would, if the bill passes, apply from July 2027 — the 1 September 2026 start was deferred on 11 August 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. Pro-rata treatment for part-time and casual employees is no longer waiting on guidance: it is set out in the bill.

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 introduced — 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 completes its passage through both houses and receives Royal Assent — 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.