Victoria’s WFH laws will significantly increase disputes, lawyers say

The Allan Labor government’s codification of work-from-home (WFH) rights for two days per week will be an enormous strain on the Victorian Civil and Administrative Tribunal, lawyers have argued.

Earlier this week (Tuesday, 16 June), the Victorian state government introduced legislation to enshrine WFH under the Equal Opportunity Act 2010, through which employees who can work from home will have the legal right to do so two days per week.

Regular, casual, and part-time workers will be covered by these new laws, the government noted, adding that the legislative changes will provide a clear pathway for dispute resolution and enforcement.

Disputes arising under the new laws will be heard by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for conciliation, or by the Victorian Civil and Administrative Tribunal (VCAT). If and when conciliation fails, the dispute will be heard at VCAT.

Speaking following the legislation’s introduction, the Law Institute of Victoria (LIV) expressed concern about the entitlement duplication and confusion, for both employers and employees, resulting in an overburdened VCAT.

Given the complexity of potentially overlapping federal and state regimes, LIV said there may be some doubts about the legality of the proposed reforms and whether they will withstand constitutional challenge.

According to LIV-accredited specialist in workplace relations Chris Molnar, who is a partner at Kennedys, having “overlapping legislative frameworks, particularly around what constitutes reasonable grounds for WFH arrangements, could ultimately create unintended consequences for both employees and employers”.

“The LIV advocates for clear and accessible laws, and any 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.

According to Holding Redlich partner Charles Power, VCAT’s workload is set for an increase after the scheme commences on 1 September.

“A feature of the bill is that employees who are already eligible to request flexible working arrangements under the Fair Work Act and wish to do so would be excluded from the Victorian entitlement. That creates the prospect of different work-from-home rights applying to employees within the same workplace depending on their personal circumstances. Employers may need to navigate different eligibility requirements and different dispute resolution pathways under the Victorian and federal regimes,” he said.

“The bill would establish a new dispute framework through the Victorian Equal Opportunity and Human Rights Commission and VCAT, including the ability for employees to seek interim orders permitting work from home while a dispute is being resolved. Combined with the no-costs nature of those jurisdictions, the framework may make challenges to employer decisions more accessible than traditional workplace litigation.”

Elsewhere, Kingston Reid partner Brad Popple noted that the laws will impose a significant burden on business in Victoria.

“The bill would give employees a right to work from home that cannot be refused by an employer, even where it would adversely impact productivity, customer service, or client relationships, for example, unless the employer can prove the impact is ‘significant’. That is a real intrusion into a business’s right to manage,” he said.

“And at the same time as requiring business to carry adverse effects to business operation, employers must also fund the cost of equipment to make the working-from-home arrangements work.”

“The criteria to be applied are inherently evaluative and accordingly involve a great deal of grey area. It’s likely this will generate disagreements, which, if not resolved, will be determined by the already resource-constrained VCAT.”

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.

Jerome Doraisamy

Jerome Doraisamy is the managing editor of Momentum Media’s professional services suite, encompassing Lawyers Weekly, HR Leader, Accountants Daily, and Accounting Times. He has worked as a journalist and podcast host at Momentum Media since February 2018. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.