Victoria To Legislate The Right To Work From Home: How Will It Work For Employers?

Demystifying the new Victorian Equal Opportunity Bill

The Victorian Government has now introduced the widely anticipated Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) (EO Bill) into the Legislative Assembly. The Explanatory Memorandum accompanying the EO Bill provides helpful context on the Government’s policy intentions.

In its current form, the EO Bill proposes to amend the Equal Opportunity Act 2010 (EO Act) to enact a right to work from home. 

If passed, this will represent a significant new compliance obligation for Victorian employers, with greater expectations on employers compared to existing Federal legislation. This update sets out what the proposed legislation requires and what you could be doing now to prepare.

When is it proposed to come into force?

If passed, the EO Bill will commence on:

• 1 September 2026 for employers with 15 or more employees; and
• 1 July 2027 for employers with fewer than 15 employees. ¹

What is the right to work from home? 

 “Eligible employees” will have the right to work from home for any period up to the ‘entitlement period’ if it is reasonable for the employee to work from home for that period.

This means there are two threshold requirements the employee must meet before accessing the right:

1. They must be an eligible employee; and 
2. It must be reasonable for the employee to work from home for the entitlement period. 

The entitlement period – what is it and how is it calculated? 

For eligible employees who work:

• 38 hours or more per week - this will be 2 days per week; or
• less than 38 hours per week - the 2 days per week will be pro-rated. 

The EO Bill specifies that the method to calculate the pro-rata hours may be prescribed in regulations. 

Practically, the regulations will need to cover how this will be calculated for employees who work irregular hours (such as casual employees and those on rotating rosters) so that employers can properly understand the expectations come 1 September.

Which employees are eligible for the proposed new right?

Eligible employees 

The right will apply broadly to “eligible employees”, which covers most permanent and regular casual employees. The following categories of employees are excluded:  

• employees on probation;
• employees undertaking an apprenticeship, traineeship, internship, graduate program, work experience program or similar program;
• regulated workers and regulated businesses within the meaning of the Fair Work Act 2009 (Cth) (FW Act) – i.e. digital labour platform operators, road transport businesses and their non-employee workers;
• certain employees who are parties to a services contract under the FW Act (where they are not a regulated worker, regulated business, or person in a road transport contractual chain);
• casual employees not employed on a regular and systematic basis; and
• any prescribed employees or class of employees under regulations.

It’s unclear at this stage which employees or classes of employees will be excluded from the regime under the regulations, for example, senior managers or executive employees.

Employees eligible to make flexible working arrangement requests

Importantly, the right to work from home under the EO Bill will not apply to employees who meet the following criteria:

1. They are an employee who is in one of the circumstances that permits the making of a flexible working arrangement request under the FW Act;² and 
2. They would like to change their working arrangements because of those circumstances; and 
3. They are otherwise entitled to make a request for flexible working arrangements under section 65 of the FW Act. 

The EO Bill clarifies that the rights of eligible employees are in addition to and will not affect other rights or entitlements that they may have under other legislation (including Commonwealth legislation, such as the FW Act, and under enterprise agreements). 

Will this only apply to employees based in Victoria?

As the EO Bill operates as an amendment to the EO Act, the existing territorial reach of the EO Act will apply. The EO Act generally governs conduct and employment occurring in Victoria, meaning employees who are based in and work in Victoria will clearly be covered. 

However, the EO Bill does not define “regular workplace”, which creates some uncertainty for employees who work remotely for a Victorian employer from another state or who divide their time across jurisdictions. We will monitor this as the EO Bill progresses and further guidance becomes available. 

Are there notification requirements?

What may come as a relief for some employers is that employees will not be able to simply start working from home on 1 September without notification to their employer. 

The EO Bill prescribes a regime that must be followed for employees to provide notice of their intention to work from home prior to doing so.

Employees 

To exercise the right, an eligible employee must provide a written notice (a “work from home notice”) to their employer, identifying: 

• specific days and times when the employee intends to work from home; and 
• whether the employee intends to work from a place other than their private residence. 

An eligible employee is not required to include the specific days or times in the notice if it is not practicable to do so. For example, where the employee’s working days may change from week to week, it may only be practicable for the employee to specify the proportion of the week which they intend to work from home. 

Employers

An employer who receives a “work from home notice” must then provide a written response to the eligible employee within 21 days. That response must: 

• confirm whether the employer considers it is reasonable for the employee to work from home as requested; and 
• if the employer does not consider the request reasonable, either: 
  • offer an alternative, for example different days, different times or for a shorter period; or 
  • inform the employee that the employer will not allow the employee to work from home at all.

If the employer is offering an alternative arrangement, the response also needs to explain why the original request was not reasonable, and set out the specific days (and times, if relevant) the employer is willing to agree to. 

If the employer is refusing altogether, the response needs to explain why the employer does not think it is reasonable for the employee to work from home at all.

This process is similar to the framework under the FW Act for flexible work requests, including structured response requirements, prescribed grounds for refusal and an obligation to consider alternative arrangements.

When would it not be ‘reasonable’ for an employee to work from home?

An employer who receives a “work from home notice” must allow the eligible employee to work from home as set out in the notice, unless it is not reasonable for the employee to work from home as set out in their notice. 

Under the EO Bill, only the following matters may be considered in assessing ‘reasonableness’:

• The inherent requirements of the employee’s role, including whether those requirements can be satisfied on specific days or at specific times:
  • without in person attendance at their regular workplace; 
  • without the employee using equipment at their regular workplace; or
  • without in person interactions between the employee and members of the public, clients / customers.

In considering the inherent requirements of the employee's role, regard must also be had, among other things, to any legal requirements relating to safety, security, welfare or supervision. 

• The impact that the employee working from home would have on the employer, including whether the employee working from home on specific days or at specific times would:
  • be likely to cause a significant decrease in productivity or efficiency for the employer; or 
  • have an adverse impact on any person's safety; or 
  • have a significant adverse impact on supervision, training or professional development of the employer's employees; or 
  • have a significant adverse impact on the capacity to build relationships between the employee and stakeholders, clients or customers of the employer; or 
  • have a significant adverse impact on customer service outcomes; or
  • have a significant adverse impact on confidentiality or data protection; or 
  • impose financial costs on the employer that are excessive; or 
  • require the employer to make changes to the working arrangements of the employee or any other employee that are impractical; or 
  • require the employer to make new hirings that are impractical.
• Any prescribed matters. 

While the list of considerations is lengthy, the test of ‘reasonableness’ will no doubt be the subject of many disputes. The test also differs from the ‘reasonable business grounds’ refusal available to employers under the Federal flexible working arrangements regime. 

Obligations to pay for reasonable costs 

An employer who is required to allow an eligible employee to work from home must pay any reasonable costs necessary to enable the employee to do so.

This will include essential equipment (such as hardware and software), and secure access to the employer’s IT systems.

From a practical perspective employers will be required to organise such measures to enable eligible employees to work from home. This could include:

• updates to company property and acceptable use policies;
• increasing malware protections;
• investing in company laptops (for businesses which have not had hybrid working policies); and
• appropriate training and/or consultation on the changes outlined above, consistent with any underlying obligations that could exist in enterprise agreements.

Disputes 

Who will hear disputes about work from home notices?

An employee who believes their employer has contravened the right to work from home provisions of the EO Act (other than section 102K) can bring a dispute to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). 

Irrespective of whether a dispute has first been brought to the VEOHRC, an employee can also make a direct application to the Victorian Civil and Administrative Tribunal (VCAT) in respect of an alleged contravention.³

Can employers bring claims?

There is no basis for an employer to bring a claim for any contravention by an employee under the right to work from home provisions. 

The only provision directed at employees, the requirement to give a work from home notice under section 102K, is expressly excluded from the dispute resolution framework.  

What are the risks of non-compliance? What orders can VCAT make?

Employers who fail to comply with their obligations face meaningful consequences. The EO Bill expands VCAT’s powers to make specific orders in relation to contraventions under the right to work from home provisions, including: 

• an order that the employer allow the employee to work from home for a period specified in the order; or
• an order that the employer do anything specified in the order to bring itself into compliance with the contravened provision. This would capture, for example, a failure to respond in writing within 21 days or a failure to pay the employee’s reasonable costs of working from home.

In addition, the vicarious liability provisions apply to contraventions of the right to work from home provisions (other than section 102K), meaning an employer can be held liable for contraventions committed by its employees or agents. A defence is available where an employer can prove, on the balance of probabilities, that it took reasonable precautions to prevent the contravention.

Employers should also be aware that the existing prohibition on victimisation under the EO Act is extended to cover the new right to work from home.  

Given VCAT has the power to order that an employee be permitted to work from home, non‑compliance carries operational consequences extending beyond financial exposure. 

The proposed State regime vs. the Federal regime 

The table below summarises the key differences between the new Victorian right and the existing flexible working arrangement framework under the FW Act: 

Constitutional validity concerns

There have been many questions raised regarding the introduction of the EO Bill. Many of these relate to the fact that the right sits alongside employment entitlements that are otherwise governed by Commonwealth legislation under the FW Act (and where Victoria has referred most of its law making powers in this area to the Commonwealth). These constitutional issues will no doubt be debated further over coming days. 

Key takeaways and steps you can take to ensure your business is ready

Given the proposed 1 September commencement date:

• Consider how you intend to respond to such a request across different employee cohorts and role types, and start gathering material in support. In particular, it will be important to be clear about your expectations for on-site presence for each employee, and the reasons for that expectation, including the inherent requirements of each role and the likely impact of any work from home arrangement. Ensure these matters are properly documented and communicated in informal and formal discussions and documentation such as position descriptions and job ads.
• Consider any safety, cybersecurity, confidentiality or other policy updates that could be required across the business to align with the proposed new laws. This might include working from home policies, internet / device and acceptable use policies. Identify if there are any particular safety or cyber security concerns that might inhibit a particular employee’s ability to work from home.
• Consider if there are any other safety and OHS related steps you might need to undertake to accommodate working from home, including risk assessments.
• Understand from your IT team if there are any barriers to permit working from home arrangements for employees who could perform their role from home. What are they? What is the cost of overcoming them?
• Consider any consultation obligations you might have under employee instruments such as enterprise agreements that could be triggered by any policy changes and safety laws.
• Consider how the changes could impact your workforce across Australia, and how requests to work from home in other states and territories may need to be managed as a result.

We will continue to monitor the EO Bill’s progress through Parliament, including once the regulations are published.

Footnotes

1 In calculating headcount for small business purposes, employees of associated entities (as defined in section 50AAA of the Corporations Act 2001 (Cth)) are included, and casual employees are not included unless employed on a regular and systematic basis by the employer or an associated entity.

2 Under section 65(1A) of the FW Act, the following categories of employees are able to request flexible working arrangements:

• pregnant employees;

• parents, or those who have responsibility for the care, of a child who is of school age or younger;

• carers within the meaning of the Carer Recognition Act 2010;

• employees with disabilities;

• employees aged 55 or older; 

• employees experiencing family and domestic violence; or

• employees who provide care or support to a member of their immediate family or household because that member is experiencing family and domestic violence.

3 The VEOHRC also has the ability to intervene in, and be joined as a party to, proceedings before VCAT that involve the right to work from home.

4 These are in addition to the existing remedies available under the EO Act, such as orders restraining the employer from committing further contraventions, compensation orders for any loss or damage suffered by the employee, and orders requiring the employer to take specified steps to redress that loss or damage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.