If you can do your job from home, should that be a right?

Commentary by Tony Baynie

If you can do your job from home, should that be a right?

That’s the question at the heart of a proposal by the Victorian State Government to make remote work a legal entitlement - granting employees the right to work from home at least two days per week, if their role permits it. Though the legislation is still being developed, it has sparked conversations across both the state, and the country, about the tension between employee autonomy and employer control - and the role of public law in relieving that tension.

The proposed law, announced in early August 2025 and expected to be introduced to State Parliament in 2026, marks a significant moment in employment regulation, signaling a great shift in how Australian legal systems may recognise and respond to evolving norms in the workplace.

Unlike existing flexible work arrangements governed at the federal level, this proposal would rely on Victoria’s state powers under equal opportunity and occupational health and safety laws to legally protect the right for employees to work from home at least two days a week, regardless of whether they are in the public or private sector. The Victorian Government has stated that, at a time when the boundaries between work and home are more fluid than ever, embedding flexible arrangements into legislation could offer greater predictability and equity, particularly for those with caregiving responsibilities, accessibility needs, or long commutes.

 Critics, however, have warned that the laws may be found to be unenforceable under section 109 of the Constitution, which provides that federal law prevails where both state and federal laws operate in the same domain. The Fair Work Act 2009 (Cth) already grants certain employees the right to appeal if their request to work remotely is refused, and the Fair Work Commission is currently reviewing conditions related to remote work under federal awards. Introducing state-level entitlements in this area would likely be inconsistent with the existing federal framework and constitutionally invalid to the extent of any conflict, meaning such provisions would be found to be inoperative under Australian law.

Either way, for employers, it invites careful planning and highlights the importance of setting up fair, workable internal policies and ensuring compliance with evolving obligations in a rapidly changing work environment.

Perhaps most profoundly, the new WFH proposals reflect a broader shift in public law: whereby social expectations increasingly shape legal responses. Just as past reforms responded to industrialisation, we are now seeing nods to a digital, post-pandemic economy. While the full implications of Victoria’s remote work proposal remain to be seen, one thing is clear: the conversation about workplace rights is no longer confined to the boardroom or bargaining table. It’s becoming a matter of public law, and a matter of public discussion.