How does working from home align with the FW Act?

Victoria’s proposed WFH bill may fail the constitutional validity test, according to recent legal advice sought by the Property Council of Australia.

Following Victorian Premier Ben Carroll’s confirmation that the Equal Opportunity Amendment (Work from Home) Bill 2026 will be debated and passed through the state’s upper house within the week, the industry group has sought legal advice as part of a campaign to have the legislation withdrawn from Parliament.

According to constitutional law experts Nick Wood SC and barrister Leigh Howard, it is likely the bill will conflict with the Fair Work Act and thereby be invalid under section 109 of the Australian Constitution.

They said the bill is “inconsistent with the Fair Work Act and will therefore be inoperative if it is enacted”, and added the entire scheme would be inoperative and no part of the bill would be usable.

According to the industry group and the legal experts, one of many areas for concern is the apparent two-tier system the proposed legislation creates, whereby some but not all workers are included. This, they said, is not in the spirit of current Fair Work arrangements.

Another argument focused on the additional compliance requirements on businesses amid economic and employment uncertainty, with Property Council Victorian executive director Cath Evans saying: “Businesses need certainty, not another layer of regulation that will end up before the High Court and with a high probability of being struck down.”

“The government has a choice: listen to the legal concerns, withdraw the bill and give businesses certainty, or push ahead with legislation that could create prolonged, costly legal challenges.”

The Property Council of Australia (PCA) also noted that policymakers, industry and Victorian taxpayers will financially suffer should the bill be proposed and invalidated.

Evans said: “Victorians deserve better.”

In a joint statement between the PCA, Housing Industry of Australia, Australian Industry Group, Victorian Chamber of Commerce and Industry, the Australian Retail Council, the Business Council of Australia, the Victorian Automotive Chamber of Commerce, and the Urban Development Institute of Australia (Victoria), it was also explained that amendments to the bill as proposed by Caroll do not sufficiently address the likely damage to Victoria’s economy and labour market.

The statement highlighted that Victoria’s unemployment rate is already the highest in the nation, and the state cannot afford the legislation at a time when households and businesses alike are feeling the pressure.

As reported by HR Leader, Carroll pushed the bill’s expected commencement from September 2026 to July 2027 to allow more time for business leader consultation.

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