The WFH Law Consultation: Could Australians Get a Legal Right to Work From Home?

The federal government has opened a public consultation on whether Australia should enshrine a default right to work from home in the Fair Work Act. Not a right to request it (we already have that). A right to actually do it, unless the employer can demonstrate genuine operational reasons why it's not feasible.

This is a significant shift. The current law under section 65 of the Fair Work Act 2009 gives certain employees the right to request flexible working arrangements, including working from home. But a request is just that. Your employer can refuse it on "reasonable business grounds" and, until recently, you had limited options to challenge the refusal.

The consultation paper, released by the Department of Employment and Workplace Relations, asks whether the framework should be flipped. Instead of employees proving why they should work from home, employers would need to prove why they shouldn't.

It's not law yet. It's not even a bill. It's a consultation — the earliest stage of the legislative process. But the political signals are clear: the government is seriously exploring this.

Before we get to what's being proposed, you need to understand what the law already says. Section 65 of the Fair Work Act gives you the right to request flexible working arrangements if you:

Are a permanent employee (full-time or part-time) who's completed at least 12 months of continuous service, or a long-term casual with a reasonable expectation of continuing regular employment. And you fall into one of these categories:

• You're a parent or carer of a child who is school age or younger
• You're a carer under the Carer Recognition Act 2010
• You have a disability
• You're 55 or older
• You're experiencing family or domestic violence
• You're supporting an immediate family or household member experiencing family or domestic violence

If you tick one of those boxes, your employer must respond in writing within 21 days. They can only refuse on reasonable business grounds, and since the Secure Jobs, Better Pay reforms in 2023, employees can now take disputed refusals to the Fair Work Commission for resolution.

The problem? Most workers don't meet the eligibility criteria. A 30-year-old without kids, without a disability, and without caring responsibilities has no statutory right to even request flexible work. And even those who do qualify often get vague refusals that are hard to challenge.

The consultation paper canvasses several models. The most significant proposals include:

1. Universal right to request. Removing the eligibility categories entirely. Every employee, regardless of personal circumstances, would have a statutory right to request flexible work, including working from home. This alone would be a major expansion.

2. Reversal of the onus of proof. Instead of "you can refuse on reasonable business grounds," the proposal suggests "the arrangement is approved unless the employer can demonstrate it would cause genuine, material operational detriment." That's a much harder test for employers to meet.

3. Default WFH for suitable roles. For roles where work can be performed remotely (office work, knowledge work, administrative roles), there would be a presumption in favour of working from home. The employer would need to affirmatively justify requiring in-office attendance.

4. Strengthened dispute resolution. The Fair Work Commission would get clearer powers to order flexible arrangements, not just mediate. Non-compliance could attract civil penalties.

5. Anti-retaliation protections. Explicit provisions making it unlawful to take adverse action against an employee for requesting or exercising a right to work from home.

Not all of these will necessarily make it into legislation. The consultation is designed to test which ones have support and which ones face practical objections.

Here's the realistic timeline based on how these things typically run:

Now – May 2026: Public consultation period. Submissions are open from individuals, employers, unions, industry groups, and anyone else who wants to weigh in. The submission deadline is 30 May 2026.

Mid 2026: The Department will review submissions and prepare a summary report. This usually takes 2-3 months after submissions close.

Late 2026 – Early 2027: If the government decides to proceed, an exposure draft bill will be released for further consultation. This is when the actual legal language gets tested.

2027: Parliamentary introduction, committee review, debate, and (if it passes) royal assent. With an election due by May 2028, the government has a narrow window to get this through.

Realistically, if this becomes law, you're looking at mid to late 2027 at the earliest before any changes take effect. Don't hand in your office key just yet.

If something like this passes, the practical impact depends on your situation.

Office and knowledge workers: This is the group that stands to gain the most. If your job involves a computer, a phone, and an internet connection, you'd have a strong presumptive right to work from home. Your employer would need a genuine operational reason (client-facing requirements, secure systems, collaborative work that genuinely can't be done remotely) to require you in the office.

Hybrid workers: If you're already doing 2-3 days from home, the law would likely protect that arrangement and make it harder for your employer to unilaterally pull you back to five days.

Frontline, retail, and trade workers: Less impact. A nurse can't work from home. A barista can't make coffee remotely. The proposals acknowledge this and the "suitable roles" test would filter out jobs that require physical presence.

Casuals: The current s.65 right is limited for casuals. Extending it universally would give long-term casuals in suitable roles a pathway to WFH arrangements they've never had before.

One important note: a right to work from home is not a right to work from anywhere. Tax, insurance, workplace health and safety, and data security obligations still apply. Your employer can still set reasonable conditions around where and how you work remotely.

Employers — particularly in sectors with mixed roles — should be paying attention. Even if this doesn't pass in its strongest form, the direction of travel is clear.

Start documenting your operational requirements now. If WFH isn't feasible for certain roles, you need to be able to articulate why with specifics, not just "we prefer people in the office" or "it's better for culture." Those won't cut it under a reversed onus framework.

Review your flexible work policies. Many employers still have informal or inconsistent WFH arrangements. Formalising them now — with clear criteria and consistent application — will make any transition smoother.

Consider the infrastructure. If WFH becomes a right, you'll need to address equipment provision, cybersecurity, WHS obligations for home offices, and performance management frameworks that work for remote teams.

Don't panic about productivity. The consultation paper cites extensive evidence that remote work, when properly managed, maintains or improves productivity for most knowledge work roles. The "everyone must be in the office" position is getting harder to defend with data.

The consultation is open to everyone. You don't need to be a lawyer or an HR professional. Individual submissions from workers carry weight, especially when they include real-world examples.

Where to submit: The Department of Employment and Workplace Relations consultation portal at dewr.gov.au. Search for the flexible work consultation.

Deadline: 30 May 2026.

What to include: Your experience with flexible work requests. Whether they were granted or refused. How WFH has affected your productivity, wellbeing, and work-life balance. If you've been denied, explain the circumstances and what it meant for you.

Tips for a strong submission:

• Be specific and factual. "I requested WFH on 15 March 2026 and was refused on the basis that..." is more powerful than general complaints.
• Address the consultation questions directly. The paper includes specific questions — answer them.
• Keep it concise. Two pages is plenty. Decision-makers read hundreds of these.
• You can submit anonymously if you're worried about your employer finding out.

Whether you're for or against the proposal, the consultation only works if people engage with it. This is one of those rare moments where your individual input can genuinely shape workplace law.