The Victorian Government has announced plans to amend the Equal Opportunity Act 2010 (Vic) to provide employees in Victoria with a legal right to work from home up to two days per week. For businesses with over 15 employees, the reforms are proposed to take effect on 1 September 2026. Smaller businesses are expected to be given until 1 July 2027 to comply. The final form of the legislation is expected to be released in July 2026.
The proposed WFH right applies to any employee whose role can reasonably be performed remotely. It is recognised by the Fair Work Commission and the Victorian Government that some roles must be performed at a specific location, for example, in construction, manufacturing, or health services, but employers will be required to assess each role based on its specific requirements. Disrupting the post-pandemic ‘back to the office’ push for many employers, it will no longer be sufficient to deny a WFH request because your business now wants its workers back at their desks.
Approach to WFH requests generally
Although the proposed changes are limited to Victoria, the approach to flexible working arrangements across Australia has significantly changed post-pandemic. A federal right to request flexible working arrangements is provided in the Fair Work Act 2009 for certain categories of employees. Since its introduction in 2010, the right has been strengthened from an easily denied aspiration for many employees to a functional legal process with a right to appeal refusals. The decisions of the Fair Work Commission also reflect the change in expectations.
Notably, in October 2025, the FWC heard a claim from a Sydney-based Westpac employee who had been denied her request to work entirely from home to manage school pick-ups. Westpac had initially cited its return to the office policy as reasonable business grounds for the refusal. It argued that the WFH arrangement requested would likely reduce productivity and impact customer service. The FWC, however, determined that Westpac had failed to comply with the Fair Work Act. Westpac had not given the employee any reasons for the initial refusal. When reasons were given, these were ‘cursory at best’, no genuine attempt was made to reach an agreement, and no regard was had to the impact of the decision on the employee. The FWC confirmed that Westpac had no reasonable business grounds to refuse the request.
On a larger scale, the Australian Services Union (ASU) has formally petitioned the FWC to vary the Clerks – Private Sector Award 2020. The ASU proposes that a WFH right should be presumed if the role is remote-capable, with narrow grounds for a business to refuse a request. A decision from the FWC is expected later in 2026 and could potentially impact 1.8 million employees covered by the Clerks Award.
Change is required
The clear support for WFH rights at both a state and federal level means that businesses Australia-wide need to adjust their processes. A good start is to review your flexible working policy and ensure that it complies with the FWA requirements (and the Victorian legislation when this is released) and that your people managers understand the steps that must be taken in responding to a flexible work request. The policy should provide for a mandatory consultation with any employee who requests to WFH. The request must be given proper consideration, and the impact on the employee if the request is denied must be taken into account. As a business, you must also understand and be clear about the business reasons behind any return-to-work mandates. This has to be more than just referring to a business-wide policy or team culture reasons. Are you able to state and substantiate the negative impact on your business if your employee does not work from the office? All of this information must be detailed and recorded when responding to an employee request.
New working arrangements will also likely mean your approach to WHS will require some updates. You might consider changing your psychosocial risk register to include isolation, and consider steps that can be taken to ensure all workers feel included and engaged in the workforce. A Home Office WHS Checklist will also be useful, which requires that employees maintain a safe environment in their home office.
Maintaining flexibility for your business
In many cases, WFH arrangements benefit both the employer and employee and can result in increased job satisfaction, productivity and reduced costs for both parties. There are always situations, however, where it just doesn’t work. Although the flexible work approach is undeniably pro-employee, businesses can take important steps to define operational parameters and protect productivity whilst fulfilling their legal obligations. Importantly, employers can issue lawful and reasonable directions to employees, and mandating a hybrid policy with required in-office days has been supported by the FWC, provided that the employer introduced the policy in accordance with the FWA – engaging in employee consultation, providing ample notice of office day requirements, and ensuring that the collaboration requirements are actually valid, etc.
At Flint, we are helping our clients manage the legislative shift by re-structuring role requirements and position descriptions to properly categorise positions and to better define on-site requirements. When positions are clearly categorised and describe specific physical triggers, it makes it much easier to be able to assess the impact of a WFH request on legitimate operational grounds. For example, a position description may include attendance at in-person collaboration sessions at least once per month, on-site supervision of junior staff, or availability for face-to-face meetings with clients.
Other options to consider include changing the way performance is measured to introduce specific WFH KPIs or implementing ‘anchor days’ when the whole team is required on site for collaboration. Trial WFH periods could also be introduced to enable you to monitor the arrangement and gather evidence of performance impact, if this occurs.
Work From Home is here to stay
Gone are the days when WFH was unusual or just for parents of young children. Businesses need to adapt in order to comply with the law, avoid potential litigation and, importantly, attract and retain talented employees. Flint can help – just reach out!