‘Unusually crude’: Lawyers criticise Allan’s proposed WFH guarantee

In response to the Victorian government’s plan to legislate working from home as a legal right, leading lawyers across the state are weighing in on what this could mean for the legal profession.

The Allan Labor government has unveiled plans to introduce landmark legislation that would make working from home a legal right for Victorian employees – representing the most significant state intervention in federal workplace laws in decades.

Under the proposed law, if an employee can reasonably perform their duties remotely, they would have the right to work from home for at least two days a week.

The legislation would apply across both the public and private sectors, making Victoria the first Australian jurisdiction to mandate a minimum number of remote work days by law.

Premier Jacinta Allan has championed the proposed legislation – set to be introduced and passed next year – as a major win for both families and the broader economy.

“Work from home works for families, and it’s good for the economy,” Allan said.

“Not everyone can work from home, but everyone can benefit.”

“If you can do your job from home, we’ll make it your right – because we’re on your side.”

The Victorian government pointed to data showing that more than one-third of Australian workers regularly work from home, including 60 per cent of professionals.

It also cited financial benefits for households, with remote work saving families an average of $110 per week – or $5,308 each year – through reduced commuting and associated expenses.

While the government has focused on the advantages of this model for Victorian workers, the proposal has sparked division – particularly within the legal sector – with many questioning how such a shift could reshape the profession.

George Haros, partner at Gadens, acknowledged that while the proposal aligns with modern workplace trends and supports employee wellbeing, making remote work a legal requirement could pose challenges for professions that rely heavily on face-to-face collaboration.

“Mandating work-from-home arrangements may be detrimental to workplaces where cooperation, teamwork and mentorship are a priority. We do know that flexible arrangements help improve and maintain employee wellbeing, which is particularly important in the legal profession where mental health issues are prevalent,” Haros said.

“While there is some doubt about its enforceability, the devil will be in the detail and the legislation will have to work hard to find some equilibrium on those matters.”

Hayder Shkara, principal at Justice Family Lawyers, echoed these concerns, questioning the practical implications of defining who can “reasonably” work from home – and who gets to make that judgment.

“The proposal to make work-from-home a legal right raises real concerns around what ‘reasonably’ working from home actually means. Who decides what’s reasonable – the employee, the employer, or the government?” Shkara said.

With many employers already managing a wide range of operational challenges, Shkara warned that transforming flexible arrangements into legal entitlements could have unintended consequences.

“Employers are already navigating complex workplace demands, and this risks creating more grey areas and disputes. What was once a matter of negotiation and flexibility may now become a rigid entitlement with unclear boundaries,” Shkara said.

Ian Neil SC, senior counsel at 6 St James Hall Chambers, also weighed in, warning that the proposed legislation represents an overstep in government involvement in workplace relations.

“The proposal, if enacted, would be an unusually crude and prescriptive intrusion by government in the way in which employers organise their operations,” Neil said.

He also questioned whether such legislation would survive a constitutional challenge, pointing to the Commonwealth’s existing workplace laws.

“However, it is unlikely that legislation of the kind described by the Premier could survive a constitutional challenge, as the Commonwealth Fair Work Act comprehensively covers the field, with its detailed regime for the making and resolution of employees’ requests for flexible working arrangements,” Neil said.

“The Victorian government must know this: as such, the proposal is more likely to be a political stunt than a serious policy.”

Chris Molnar, the Law Institute of Victoria’s accredited specialist in workplace relations, expressed similar reservations, particularly around potential conflicts with existing federal law.

“The LIV is concerned that any new Victorian legislation on WFH could potentially encroach on existing federal legislation and regulation, which already grant eligible employees the right to request flexible work arrangements, including WFH options,” Molnar said.

“Federal law stipulates that such requests can only be denied on reasonable grounds and provides pathways for employees to challenge any refusals through the Fair Work Commission (FWC).”

He cautioned that overlapping legislative frameworks – particularly around what constitutes “reasonable grounds” for work-from-home arrangements – could ultimately create more harm than good for both lawyers and law firms.

“The LIV advocates for clear and accessible laws, and any proposed Victorian statute addressing an area already largely covered by federal legislation may lead to significant confusion and uncertainty for both employers and employees,” he said.