Jacinta Allan work from home law: All your questions answered

Herald Sun

20 hours ago

Premier Jacinta Allan sparked a whole weekend of conversation when she announced plans to enshrine the right to work from home into law.
Under the Australian-first legislation, Victorian workers who can reasonably do their job from home would have the right to do so at least two days a week.
However, fuming business figures and puzzled legal experts were quick to point out that the plan was not so clean cut.
More than a third of Australian workers – including 60 per cent of professionals – regularly work from home.
But will most of us actually be legally protected to work from home two days a week or is this just a political manoeuvre to win votes?
Under the proposal, who would be legally protected to work from home two days a week?
Workers in both the private and public sector who can reasonably work from home. If you can work from home now, you would likely have the right to work from home two days per week.
When would this actually come into place?
The Premier has pledged to introduce legislation to parliament next year, prior to the November state election. However, she has not given an exact time frame.
This sounds great! But is this actually work?
Legally, maybe not.
Victoria, like other states, handed its powers over private sector workplace regulation to the federal jurisdiction decades ago.
Under s109 of the Constitution, if a state law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the state law is invalid.
The Fair Work Act also overrides state laws that regulate conditions of employment.
State laws enshrining work-from-home two days a week could therefore face a series of legal challenges and even be considered unconstitutional in the event the laws attempt to legislate in territory ruled by the Commonwealth.
My EBA doesn't expire for years and doesn't include a clause outlining two days a week from home. Will I still be able to WFH two days a week?
Generally EBAs (Enterprise Bargaining Agreement) are under the Fair Work Act, which can override state laws.
If your EBA does not specifically outline that you are able to work from home two days per week, the right will not be automatically afforded to you.
What if my employer refuses?
We're going to need to wait on more detail to understand what the outcomes could be.
However, it could depend on a number of circumstances.
Private sector businesses are generally covered by the Fair Work Act, which overrides state employment laws. This will need to be tested in the High Court.
Jacinta Allan has flagged that the Equal Opportunity Act – which protects workers from discrimination and harassment – could be used to cover some workers.
What are legal experts saying?
Legal experts have raised serious concerns about whether this will actually pass court challenges.
University of Melbourne's John Howe, who specialises in labour relations, says there was a potential constitutional hurdle.
'There'll obviously be an implementation challenge for companies that are operating across states that have an inconsistent approach,' he said.
'There's the question of what Victoria does to enforce it … what apparatuses is Victoria going to use to try and monitor compliance?
'There'll be people who are opposed to it, employers who are opposed to it who bring the challenge.'
Professor Howe, however, says there could be circumstances where employers who dismiss or disregard the new legislation are taken to court on discrimination grounds.
'There might be an argument that if you were declining to provide the (option to) work from home that you might be discriminating against workers who have legitimate reasons,' he said.
'There certainly might be areas where you could claim not recognising the right would be discriminatory.'
Why has the government announced this?
It's popular!
Working from home part of the week is the norm post Covid and working families, particularly working mums, have structured their lives around the flexibility of three days in the office, two at home.
It also forces the opposition into a corner. Support it, well they're giving Labor a tick of approval while turning on their business voter base.
Oppose it and they risk losing the demographic they desperately need – women.
What has the Premier said?
Premier Jacinta Allan says the plan is all about working families, giving parents more time to be with their kids while also allowing them to save money by skipping the commute to the office.
'My Labor government will make working from home a right, not a request,' Ms Allan said.
'We will not stand by while workers, especially women, single mums, carers, get punished for needing balance in their lives.'
She, however, has also picked a fight with private sector bosses, accusing them of refusing to allow employees to work from home to maintain 'power'.
'This isn't about whether the work gets done, it gets done.
How have business leaders responded?
Australian Industry Group head Tim Piper called the plan 'pure political theatre designed to wedge the state opposition'.
'The proposal is a serious government overreach that undermines business autonomy and further jeopardises economic confidence in the state,' he said.
Australian Restaurant and Cafe Association chief executive Wes Lambert argued the proposal would only divide workplaces.
'This announcement today simply defies reality and only demonstrates the lack of understanding the current government has on how our economy works,' he said.
Victorian Chamber of Commerce chief executive Paul Guerra warned it could force more businesses to flee interstate.
'If Victoria moves away from the legislated national system, businesses will move interstate and jobs will be lost,' he said.
What has the Opposition said?
State Opposition Leader Brad Battin knows it's not popular to restrict work from home arrangements.
He, like all Australians, watched this play out on the national stage at the May election when his then federal counterpart, Peter Dutton, was forced to backflip on his policy to force public servants back into the office full time.
He knows he's been cornered and is therefore being cautious.
'We support measures that help Victorians enjoy a better work-life balance, and will review any legislation closely, to ensure it supports flexibility, productivity, and personal choice,' he said on Saturday.