In Victoria, new laws are working their way through the system to give employees the right to work from home up to 2 days a week. This will significantly extend the flexibility already available under the Fair Work Act. The changes will apply to all Victorian employees whose role can “reasonably” be performed remotely, and regardless of their personal circumstances.
This will usurp the current Fair Work process which requires a request, a response and the business to consider their business requirements against the employee’s personal circumstances. Yes, a legal right for all employees whose job can “reasonably” be performed from home.
How will these changes work in practice?
Working from home 2 days a week will become the default position for all Victorian employees who can perform their jobs remotely, unless their employer can demonstrate that they need to be physically present.
Requiring in office attendance for the purpose of workplace culture, team cohesion, training and support alone will not be enough.
Instead of looking at the business and the employee’s interests as a scale that needs to balance, it is going to be harder to work against the default.
We have already seen how far that scale can be tipped in favour of employees in a recent case decided in May 2026.
In Laura Kliffen v Reapit Employment Services Pty Ltd [2026] FWC 1766, Fair Work considered a Sydney mum’s flexible workplace request. The employer had recently acquired the business with offices in Sydney and Brisbane and staff had been working remotely with occasional attendance across the two locations.
The employer implemented a 2 day a week return to the office policy for all staff. They argued that they needed ‘to prioritise culture, team cohesion, training and support across all teams and all offices, especially in light of its recent rebranding.’
The employee requested flexible arrangements to work from home so as to accommodate her personal circumstances. She had a daycare drop off for her 4 year old, and a school dropoff for her 7 year old, and then a 1 hour 20 minute commute to get to the office. The employer suggested changing her in office work hours to 10am-6pm.
The employee again contested this decision where no one else was in the office, her IT support role was able to be performed from home and indeed 9 members of her team already worked either partially or fully remotely including 3 based in Manila. She explained that she would not be home until her children were already in bed, that there were additional childcare and travel costs, and that her daughter with some complex medical needs was experiencing more acute behavioural challenges as a result or her not being home as much.
The employer argued that the employee’s reasons for requesting flexible work arrangements did not outweigh the employers ‘reasonable business grounds for requiring the Applicant to work one or two days per week from the office.’
Fair Work found that whilst it was reasonable to refuse a request to not attend the office at all, the reasonable balance was for the employee to return to the office only one day a fortnight, starting at 10am and making up the additional 90 minutes across the balance of the fortnight.
Is Fair Work just employee friendly?
While these highly publicised cases suggest that employees have the scales tipped too far in their favour, there are many cases decided the other way too.
In Paul Collins v Intersystems Australia Pty Ltd [2025] FWC 1976, Fair Work considered another flexible workplace request involving a dad who wanted to continue working two days a week from home under an existing hybrid work model. He also had care of two school aged children aged 8 and 10 and coordinated school pick up and drop off with his wife.
The employer, a global health record software company, made really similar arguments to the above employer: claiming that it was reasonable to require staff to perform their roles in the office ‘to facilitate exchange of information and to support mentoring opportunities.’
They claimed that having staff in the office allowed for faster decision making and more efficient resolution of customer issues. They relied on a customer survey to support this claim which showed a 28% decline in customer satisfaction, which led to management’s decision to implement measures to improve business efficiency and office attendance.
Importantly, even having decided this, they also offered practical alternatives to the employee including shorter working hours on specified days which would have balanced the two interests.
Fair Work found that because the employee didn’t fully explain the effect on his caring arrangements, admitted that he didn’t have any identifiable caring responsibilities between 9am-5pm, and didn’t accept his employer’s offer for shorter working hours on specified days, the employee did not meet the eligibility criteria for the flexible work request. Fair Work also noted that even if he had met the criteria, the employer’s refusal was made on ‘reasonable business grounds.’
The message is that there is still some scope to balance competing interests and that each employee request should be approached on a case by case basis. There is no one size fits all outcome. Decision makers should understand the framework and carefully work through it. Decision making and record keeping requirements will only become more complicated when the new laws start.
We can help when you’re unsure about how to comply, you’re wanting a strong prediction of what Fair Work would decide in an individual situation, or some feedback on your process and communication. Employers flip flopping, creating uncertainty and making employees feel unheard are patterns we see when these things go off track.
When will these new laws start?
Victorian businesses will need to comply with the new laws from 1 September 2026, although the changes have been delayed until 1 July 2027 for small businesses (those with less than 15 employees) to give them more time to prepare for the changes. Small businesses are already captured by the Fair Work requirements so don’t get confused that this is something you can put off entirely, if you haven’t already been thinking about it.
With the new laws, it is an even stricter expectation that good process is followed and refusals are well-documented and justifiable.
So what should you actually be doing?
It’s time to dust off the recycled template sitting in the policies and procedures manual and develop a policy and action plan that reflects how your business actually operates. Something that explains how requests are handled, what factors matter to your business and when saying no is reasonable.
You don’t have to approve every work-from-home request. But you do need to be able to explain your decisions clearly, consistently, and with actual business reasons behind them.
The sooner your policies catch up, the less likely you are to learn the hard way.
Contact Sarah Gee, Bendigo business lawyer if you need work from home legal advice for your business, via phone, email or book in directly online.
