New WFH Law Victoria 2026: Right to Work From Home 2 Days/Week

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?

The Victorian Government under Premier Jacinta Allan has announced Australia's first state-level work from home legislation. Under the proposed law, any employee in Victoria whose role can "reasonably" be performed from home will have the legal right to work from home for two days per week — pro rata for part-time and casual employees. This is a standalone Victorian initiative, separate from the federal Fair Work Act, and goes significantly further than the existing federal right to request flexible work under section 65.

The legislation is expected to take effect on 1 September 2026 for businesses with 15 or more employees, with small businesses (fewer than 15 employees) given until 1 July 2027 to comply. Premier Allan has stated there will be no small business exemption: "If you can work from home for a small business, you deserve the same rights as someone working for a big bank." The government has cited savings of $110 per week ($5,308 per year) per worker from reduced commuting costs as one of the policy justifications.

About the Victorian law creates a presumed right to work from home two days per week — meaning the default is that eligible employees can work remotely unless their employer can demonstrate the role genuinely can't be performed from home. This is fundamentally different from the federal system, where employees must request flexible work and meet qualifying criteria (such as being a carer or parent). Under Victoria's proposal, all employees whose roles can reasonably be done remotely are covered, regardless of personal circumstances.

Employers who want to refuse must show the role requires physical presence — not simply that they prefer in-office attendance. Disputes will be handled by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for conciliation, with unresolved cases going to the Victorian Civil and Administrative Tribunal (VCAT).

The government opened consultation through the Engage Victoria portal in August 2025, with industry roundtables running through September 2025. The Equal Opportunity Amendment (Work from Home) Bill 2026 was introduced to the Victorian Parliament on 16 June 2026, passed the Assembly on 30 July 2026 and was referred to a Legislative Council select committee on 10 September 2026. It is not yet law — it has not passed both houses and has not received Royal Assent. As introduced, the bill excludes employees on probation, apprentices, trainees, interns and graduate program participants, along with regulated workers and regulated businesses under the Fair Work Act, and it requires employers to cover the reasonable costs of the arrangement, including essential hardware and software and secure access to the employer's information systems.

In October 2025, the Fair Work Commission issued a landmark ruling that sent shockwaves through corporate Australia. A Sydney-based Westpac mortgage team worker requested full-time work from home to handle school pick-ups for her children. Westpac refused, citing its return-to-office policy.

The Commission sided with the employee, finding that Westpac had failed to establish reasonable business grounds for its refusal. The ruling noted that her work could be "performed completely remotely," that she had been working from home successfully for years with deadlines "met or exceeded," and that "a loss of productivity or efficiency or a negative impact on customer service hasn't materialised." The decision sent a "clear message" to employers that blanket return-to-office mandates without evidence-based reasoning won't stand up to scrutiny.

This was not the only ruling — in Kent Aoyama v FLSA Holdings, the FWC found the employer "had not provided compelling proof" of any material impact, and in Anthony May v Paper Australia, the refusal was found "not based on reasonable business grounds." The message is consistent: generic HR answers are no longer enough (yes, really).

In a potentially even bigger development, the Australian Services Union (ASU) has applied to the Fair Work Commission to insert a work-from-home term into the Clerks Private Sector Award. This award covers approximately 1.8 million clerical and administrative workers across Australia — roughly three-quarters of whom are women. The proposed clause would create a presumed right to work from home if reasonably requested.

If an employer wants to refuse, they would need to give 26 weeks (six months) notice before enforcing a return to office. The ASU has described the move as designed to "disrupt the push back to office." A survey of 600 clerical workers found 90% currently work from home at least part-time, and over 95% rated remote work as "very" or "extremely" important.

The FWC started final hearings in September 2025, with submissions closed and a decision still pending as of March 2026. If successful, this would create award-level WFH rights for the largest single group of workers in Australia — without needing new legislation.

Yes, return-to-office mandates can still be lawful — but the bar has risen significantly. In the PaperCut Software case (June 2025), a Melbourne software engineer was fired for refusing to return to the office. The FWC found PaperCut's return-to-office mandate was a lawful direction and the dismissal wasn't unfair.

The key difference? PaperCut could demonstrate genuine business reasons for requiring in-person attendance. This shows the law cuts both ways.

Employers with legitimate, evidence-based reasons for requiring office attendance — such as collaborative work that genuinely cannot be done remotely, client-facing requirements, or equipment access — can still mandate office presence. But employers who simply prefer workers to be visible in the office, without substantive evidence that remote work harms productivity or operations, face increasing legal risk. The FWC has made clear that "generic and blanket HR answers aren't sufficient alone to establish a reasonable business ground for refusing a request." If you have been ordered back to the office, check whether your employer has actually addressed your specific role and circumstances.

Legal commentators have flagged potential constitutional challenges to Victoria's proposed WFH legislation. Under the Australian Constitution, workplace relations is generally a Commonwealth power, exercised through the Fair Work Act. Victoria referred its industrial relations powers to the Commonwealth in 2009, meaning the federal system covers most Victorian private sector workers.

So how can Victoria legislate on working arrangements? The most likely approach is to frame the legislation under the state's powers relating to health and safety or equal opportunity — areas that remain within state jurisdiction — rather than as industrial relations law. This is similar to how states regulate discrimination in the workplace through their own equal opportunity acts.

However, if the legislation is seen as directly regulating employment conditions (rather than addressing health, safety, or discrimination), it could face a constitutional challenge from employer groups. The Victorian Chamber of Commerce and Industry has called for careful implementation. Whatever happens, the federal flexible work rights under section 65 will continue to operate as a floor — the Victorian law would sit on top as an additional protection.

If you're a Victorian employee wanting to work from home, you do not need to wait for the state legislation. You already have rights under the federal Fair Work Act. If you meet the qualifying criteria under section 65 (parent of a school-age child, carer, person with disability, 55+, experiencing family violence, or pregnant), you can make a formal written request to your employer today.

Your employer must respond within 21 days and genuinely try to accommodate your request. If they refuse, you can take the matter to the Fair Work Commission, which can order your employer to grant the request — as the Westpac ruling demonstrated.

Even if you don't meet the section 65 criteria, start the conversation with your manager. Frame your request around business outcomes: explain how you will maintain productivity, stay available for meetings, and handle any role requirements that need physical presence. Document everything in writing. If the Victorian legislation passes as announced, the right to two days per week WFH will apply from 1 September 2026 for larger employers, giving employees a much broader entitlement that does not depend on personal qualifying circumstances.