Victoria's Work From Home Law Has Stalled: Is It Legal, and Does It Have to Pass the High Court?

Short version: there is no right to work from home in Victoria today, and there will not be one before the November 2026 state election. On Thursday 10 September 2026 the Legislative Council voted 18 to 17 to send the Equal Opportunity Amendment (Work from Home) Bill 2026 to a select committee. The committee must report by 20 October 2026, and the bill's second reading is deferred until that report lands. One sitting week remains before Parliament rises for the election, and Premier Ben Carroll has said he will not add another: "I've already added one week to the parliamentary sitting."

The motion came from Shooters, Fishers and Farmers MP Jeff Bourman, who said there was "a lot of extra bureaucracy" in the bill, that "businesses are nervous", and that "the government is the government — they can call an extra sitting date if they want. We're not trying to block the bill." The Coalition voted with him, even though Shadow Attorney-General James Newbury had said the opposition supported the government's amendments and had "no plans" to change the law in office. Animal Justice MP Georgie Purcell also voted for the referral: the government had handed over "substantial" amendments the previous afternoon, and "we weren't given enough time to give these amendments the consideration they deserve." Labor MP turned independent Adem Somyurek returned from a months-long absence to vote for it.

Labor had expected the bill to pass that afternoon. Earlier that day it had announced a set of concessions to business: a Victoria-only residency rule, a narrower definition of "home", employer costs limited to essential equipment, a 28-day response window, a power to pause arrangements during peak periods, and a start date of 1 July 2027 (1 January 2028 for workplaces under 15 staff). The full list is below.

The reactions tell you where this goes next. Carroll: "What we have seen tonight is anti-family [and] anti-worker." Business Council chief executive Bran Black: "This referral should be the final nail in the coffin for this economy-wrecking legislation." Property Council Victoria's Cath Evans said the Parliament had "seen sense" by sending the bill to a committee "to properly examine its operation, implications and legal validity." Greens leader Ellen Sandell, from the other side: "Workers were promised a right to work from home. Labor delayed it, gutted it and then completely botched getting it through Parliament."

So the policy is not dead. It is an election issue now, and the committee's 20 October report will be the last official word on it before Victorians vote on 28 November.

This is the question the committee has been asked to examine, and it is genuinely open. Victoria referred its industrial relations powers to the Commonwealth (most recently under the Fair Work (Commonwealth Powers) Act 2009 (Vic)), so almost every Victorian employer and employee is in the national system under the Fair Work Act 2009 (Cth). Section 26 of that Act says it applies to the exclusion of state "industrial laws" for national system employers and employees. Section 109 of the Constitution says that where a state law is inconsistent with a valid Commonwealth law, the Commonwealth law prevails and the state law is invalid to the extent of the inconsistency.

That is why the bill was never drafted as an industrial law. It amends the Equal Opportunity Act 2010 (Vic), and section 27 of the Fair Work Act keeps state anti-discrimination laws outside the section 26 exclusion. The drafting also steps around the federal right to request flexible work: an employee who is eligible under section 65 of the Fair Work Act has to use that process instead, and the 10 September amendments added that the Victorian right "won't stack on top of other rights or entitlements to work from home in Commonwealth law". Every one of those choices is a tell. The government knows where the danger is and has drafted to avoid it.

The case that it fails anyway comes from advice the Property Council commissioned from Nick Wood SC and barrister Leigh Howard, released on 10 September. Their conclusion, as reported by Lawyers Weekly: the bill is "inconsistent with the Fair Work Act and will therefore be inoperative if it is enacted", the entire scheme would be inoperative, and no part of it could be preserved. One of their concerns is the "two-tier system" the bill creates, with some workers covered and others not. We have not seen the government publish advice of its own; its position, expressed through the drafting and the September amendments, is that the scheme sits within state power.

Our read. Courts look at what a law does, not which Act it is filed under. A right to a particular working arrangement, enforceable against an employer with a tribunal order at the end of it, looks a great deal like a term and condition of employment, which is the ground the Fair Work Act reserves to itself. Against that, section 27's protection of state anti-discrimination law is broad, the bill is built to sit beside section 65 rather than replace it, and inconsistency is a high bar when a state scheme has been designed not to collide. Serious practitioners have lined up on both sides since June. Anyone who tells you the answer is obvious is selling something.

No. There is no such thing as a law being pre-approved by the High Court. If the bill passed both houses and received Royal Assent, it would commence on its start date and operate as law. It would keep operating unless and until a court declared it inoperative under section 109. Courts do not review legislation on their own initiative; somebody has to bring a case.

That somebody needs standing, which in practice means an employer with something to lose: a business that has received a work from home notice, most likely with an industry group behind it. There are two routes. The direct one is to start proceedings for a declaration that the provisions are invalid. Constitutional matters can be brought in the High Court's original jurisdiction, or started in the Federal Court or the Supreme Court of Victoria and moved up. The indirect one is to wait for a dispute and raise the point as a defence: an employer refuses, the worker goes to VEOHRC and then VCAT, and the employer argues the right does not validly exist. That defence has a complication of its own. Since the High Court's 2018 decision in Burns v Corbett, a state tribunal that is not a court cannot decide a matter arising under the Constitution, so the section 109 question would have to go to a court before VCAT could do anything with the complaint.

How long? The 2006 challenge to Work Choices was argued and decided within a year of that law commencing. A challenge to a narrower state law would not necessarily be quicker, because the first step is finding a plaintiff and a dispute.

Why this matters for the "fair and responsible" question. A law that starts in July 2027 and is struck down in 2028 is the worst outcome for both sides. Workers would have made arrangements, and possibly childcare and commuting decisions, on a right that evaporates. Employers would have spent on compliance for a scheme that was never valid, and the ones who refused notices in the meantime would have been taken through conciliation over a right that did not exist. "We think it's unconstitutional" is not a defence you can run at a VEOHRC conciliation table. Whatever you think of Thursday's vote, a committee examining validity before commencement is a cheaper way to find out than a test case afterwards.

The bill on the table is the version that passed the Assembly on 30 July, unamended. The government's 10 September amendments were circulated but never voted on, so the committee is looking at both. Here is the scheme as it would stand if the amendments were adopted, drawn from the introduction print, the Victorian Government Solicitor's Office summary and the Premier's 10 September release.

Two things worth noticing. The refusal list was already a high bar: "significant" and "excessive" are doing a lot of work, and the Victorian Government Solicitor's Office read them the same way. And the amendments moved almost entirely in one direction. "Gutted" is an overstatement, but the September bill asks less of employers than the June one on every line where the two differ.

Our test for any workplace law is whether it is fair to the worker and responsible for the employer, so let us take each side seriously.

The federal right is narrow, and most people have no right at all. Section 65 of the Fair Work Act lets you request flexible work only if you are a parent of a school-age-or-younger child, a carer, have a disability, are 55 or older, are experiencing family and domestic violence, or are pregnant, and only after 12 months' service. A 32-year-old analyst with no kids has no legal footing to ask, let alone to insist. The Victorian bill keys the right to the role, not to the person's circumstances. That is its single biggest change.

It flips the burden. Under section 65 the employee asks and the employer refuses on "reasonable business grounds". Under the Victorian bill the employer has to show, against a fixed list, that home working is not reasonable. A defined list is easier for a worker to argue against than an open-ended phrase.

There is a remedy. VCAT can order the arrangement. The Fair Work Commission can now arbitrate flexible work disputes too, but only for the section 65 categories.

The money is real, even if the figures are the government's. The March release put commuting savings at $110 a week, or $5,308 a year, and the time saved at more than three hours a week. Those are the Premier's numbers, not an independent estimate, but nobody seriously disputes that two days at home is worth something to a household.

It mostly protects what already exists. The Fair Work Commission's Full Bench found on 27 August that working from home "may now be considered an entrenched feature of employment in the clerical and administrative sector". For most eligible workers the bill would not create an arrangement; it would stop one being taken away. The Commission has found blanket return-to-office refusals unreasonable in individual cases since the Westpac decision in October 2025, but each of those is one worker, one application, one hearing.

What the honest worker-side case has to concede. It is two days, not three, and the employer could pause them for peak periods. Interstate colleagues on the same team would have no right at all under the residency rule. Anyone on probation, or already eligible under section 65, is outside it. And if the constitutional argument is right, the whole thing is a promise that cannot be kept, which is worse for a worker than no promise.

The employer lobby has run a hard line. Ai Group's Tim Piper called the referral "a victory for common sense" and said the bill "creates winners and losers for the employees and discourages business from investing"; the Business Council says it would "send jobs interstate". Some of that is real. But there is also a case that a well-drafted version of this law is better for employers than the alternative, and it deserves a hearing.

A fixed list beats an open-ended test. Under the Fair Work Act, "reasonable business grounds" means whatever the Commission says it means, and the Commission has been raising the bar. In the Clerks Award decision it said "generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request". The Victorian list names the grounds. An employer with a genuine on-site requirement, a data-protection problem or an excessive cost can point to the paragraph.

The September amendments removed the expensive parts. No home internet, no utilities, no open-ended "reasonable costs", a 28-day clock instead of 21, and a statutory power to pause arrangements for a trade show or a peak trading period. Those were the concessions business asked for in August, and it got most of them.

It levels the field. Hybrid work is entrenched in office-based sectors whether or not Victoria legislates. A floor that applies to every employer means none of them has to be the one that offers it, and none of them can undercut the others by withdrawing it. Employers who already run hybrid arrangements properly would be close to cost-neutral.

Certainty about the rules is worth money. A written notice, a written response, a defined reason and a dispute pathway is a process. The current alternative in many workplaces is a manager's mood.

The small end got time. Workplaces under 15 staff would not be covered until 1 January 2028, and the whole scheme would be reviewed from 1 January 2029.

What the honest employer-side case has to concede. The businesses that feel this are the 15-to-50-employee firms with no HR function and a new statutory process to run. A new right in a new forum produces disputes in its first two years while the boundaries get drawn. The residency rule creates two classes of employee inside one team. And an employer who spends on compliance for a law later struck down gets nothing back. The Property Council's line that "businesses need certainty, not another layer of regulation that will end up before the High Court" is a fair point even if you support the policy.

If you are a worker in Victoria: nothing has changed in law. The Victorian right does not exist, it cannot exist before 1 July 2027, and only if the next Parliament passes it. Your live options are federal. If you fit a section 65 category and have 12 months' service, make a written request; our flexible work request builder does the drafting, and your employer must respond in writing within 21 days and can refuse only on reasonable business grounds. If you are covered by the Clerks Award, the Commission's draft clause 5A gives you a written request route with the general protections attached; submissions on the draft close at 5pm AEST on Thursday 17 September 2026. If neither applies, your arrangement rests on your contract and your employer's policy, and documentation is your only protection. Our Victorian WFH eligibility checker still models the bill as introduced, so you can see where you would have stood.

If you are an employer in Victoria: do not read the referral as permission to dismantle hybrid arrangements. The federal standard on refusals is rising with or without Victoria, the Clerks Award clause is coming, and a written, role-by-role rationale for who can work where is what section 65 already expects of you. Keep it. Do not spend on scheme-specific compliance for a law that may never commence. Watch two dates: the committee report on 20 October 2026 and the election on 28 November 2026. If Labor is returned, this bill comes back with the September amendments as its floor. If the Coalition wins, Newbury's "no plans" to change it will be tested against a Coalition that has just voted to shelve it.

For the scheme as introduced, see our Victorian work from home law explainer. For the cost and validity arguments as they stood in August, see who pays for the home office, and can the state even do this. For the federal award change, see the Clerks Award clause 5A analysis. Our AI advisor can work through a specific request or refusal against the law that actually applies today.

General information, not legal advice. Parliamentary events, amendments and quotations as recorded by the Parliament of Victoria and reported by the Premier's office, the ABC, AAP via SmartCompany, Lawyers Weekly and HRD to 12 September 2026. The constitutional question is unresolved and is presented as contested. Verified 12 September 2026.