'Lawyers' picnic' looms over right to work from home

The Advertiser

3 days ago

An Australian-first plan to legislate the right to work from home could become a "lawyers' picnic", experts warn.
The Victorian government has promised to introduce legislation in 2026 to create a right for employees to work from home two days a week.
The laws are yet to be drafted but the right is slated to apply to all Victorian public and private sector workers who can reasonably do their job from home.
Carve-outs in the Fair Work Act allowed for protections under state anti-discrimination laws, employment lawyer Daniel Victory said.
But how wide the state Labor government cast the net could open the proposed laws to legal challenge, particularly from the private sector.
"The broader they make the right the greater the possibility of a challenge," Mr Victory told AAP.
Employers trying to "squeeze" staff to return to the workplace after the COVID-19 pandemic was a major "bone of contention", Maurice Blackburn's principal lawyer of employment and industrial law in Melbourne said.
He described working from home as a "fact of life" and said enshrining it as a right would help make it a "cultural norm" for businesses to reflect.
Industrial relations laws are set by the federal government and regulated by the Fair Work Commission.
Section 109 of the constitution dictates that if a state law conflicts with a Commonwealth law, the latter prevails.
Joellen Riley Munton, an expert in labour law at the University of Technology Sydney, noted the commission assessed working-from-home clauses in awards and enterprise bargaining agreements.
"It would be a very easy thing for someone who objects to the state law to just say 'I only have to abide by the federal laws'," Professor Munton told AAP.
"That will be the obstacle for the effectiveness of any Victorian law."
Former Fair Work Commission vice president Graeme Watson agreed the proposed right, if as general as initially described, was headed for a clash with federal laws.
If Victoria's Equal Opportunity Act was chosen as the vehicle to legislate the right, he said the laws would have to establish what discrimination they were guarding against.
"Then you're proceeding into a bit of maze," the King & Wood Mallesons strategic counsel told AAP.
"It's either going to be clearly invalid or likely unworkable, but probably both."
Mr Watson said arbitration existed for disputes over flexible work arrangements and argued a need to change that remedy had not been demonstrated.
He compared the proposal to Victoria's wage theft laws, which were subject to High Court challenge before their repeal after the Albanese government instituted federal legislation.
"This is a lawyers' picnic," Mr Watson said.
"Why are you creating all this work for lawyers?"
She defended her claim Liberals across the country were "drawing up plans to abolish work-from-home and force workers back to the office".
Opposition Leader Brad Battin denied it was a touchy subject internally after Peter Dutton backflipped on ending working from home for public servants during the Liberals' disastrous 2025 federal election campaign.
The state Liberal leader is waiting to see the detailed legislation before the party decides its stance.
Senior federal minister Tanya Plibersek said the Albanese government wasn't going to give its Labor colleagues' plan a "tick or a cross" when asked if it would step in to overrule the state.
An Australian-first plan to legislate the right to work from home could become a "lawyers' picnic", experts warn.
The Victorian government has promised to introduce legislation in 2026 to create a right for employees to work from home two days a week.
The laws are yet to be drafted but the right is slated to apply to all Victorian public and private sector workers who can reasonably do their job from home.
Carve-outs in the Fair Work Act allowed for protections under state anti-discrimination laws, employment lawyer Daniel Victory said.
But how wide the state Labor government cast the net could open the proposed laws to legal challenge, particularly from the private sector.
"The broader they make the right the greater the possibility of a challenge," Mr Victory told AAP.
Employers trying to "squeeze" staff to return to the workplace after the COVID-19 pandemic was a major "bone of contention", Maurice Blackburn's principal lawyer of employment and industrial law in Melbourne said.
He described working from home as a "fact of life" and said enshrining it as a right would help make it a "cultural norm" for businesses to reflect.
Industrial relations laws are set by the federal government and regulated by the Fair Work Commission.
Section 109 of the constitution dictates that if a state law conflicts with a Commonwealth law, the latter prevails.
Joellen Riley Munton, an expert in labour law at the University of Technology Sydney, noted the commission assessed working-from-home clauses in awards and enterprise bargaining agreements.
"It would be a very easy thing for someone who objects to the state law to just say 'I only have to abide by the federal laws'," Professor Munton told AAP.
"That will be the obstacle for the effectiveness of any Victorian law."
Former Fair Work Commission vice president Graeme Watson agreed the proposed right, if as general as initially described, was headed for a clash with federal laws.
If Victoria's Equal Opportunity Act was chosen as the vehicle to legislate the right, he said the laws would have to establish what discrimination they were guarding against.
"Then you're proceeding into a bit of maze," the King & Wood Mallesons strategic counsel told AAP.
"It's either going to be clearly invalid or likely unworkable, but probably both."
Mr Watson said arbitration existed for disputes over flexible work arrangements and argued a need to change that remedy had not been demonstrated.
He compared the proposal to Victoria's wage theft laws, which were subject to High Court challenge before their repeal after the Albanese government instituted federal legislation.
"This is a lawyers' picnic," Mr Watson said.
"Why are you creating all this work for lawyers?"
She defended her claim Liberals across the country were "drawing up plans to abolish work-from-home and force workers back to the office".
Opposition Leader Brad Battin denied it was a touchy subject internally after Peter Dutton backflipped on ending working from home for public servants during the Liberals' disastrous 2025 federal election campaign.
The state Liberal leader is waiting to see the detailed legislation before the party decides its stance.
Senior federal minister Tanya Plibersek said the Albanese government wasn't going to give its Labor colleagues' plan a "tick or a cross" when asked if it would step in to overrule the state.
An Australian-first plan to legislate the right to work from home could become a "lawyers' picnic", experts warn.
The Victorian government has promised to introduce legislation in 2026 to create a right for employees to work from home two days a week.
The laws are yet to be drafted but the right is slated to apply to all Victorian public and private sector workers who can reasonably do their job from home.
Carve-outs in the Fair Work Act allowed for protections under state anti-discrimination laws, employment lawyer Daniel Victory said.
But how wide the state Labor government cast the net could open the proposed laws to legal challenge, particularly from the private sector.
"The broader they make the right the greater the possibility of a challenge," Mr Victory told AAP.
Employers trying to "squeeze" staff to return to the workplace after the COVID-19 pandemic was a major "bone of contention", Maurice Blackburn's principal lawyer of employment and industrial law in Melbourne said.
He described working from home as a "fact of life" and said enshrining it as a right would help make it a "cultural norm" for businesses to reflect.
Industrial relations laws are set by the federal government and regulated by the Fair Work Commission.
Section 109 of the constitution dictates that if a state law conflicts with a Commonwealth law, the latter prevails.
Joellen Riley Munton, an expert in labour law at the University of Technology Sydney, noted the commission assessed working-from-home clauses in awards and enterprise bargaining agreements.
"It would be a very easy thing for someone who objects to the state law to just say 'I only have to abide by the federal laws'," Professor Munton told AAP.
"That will be the obstacle for the effectiveness of any Victorian law."
Former Fair Work Commission vice president Graeme Watson agreed the proposed right, if as general as initially described, was headed for a clash with federal laws.
If Victoria's Equal Opportunity Act was chosen as the vehicle to legislate the right, he said the laws would have to establish what discrimination they were guarding against.
"Then you're proceeding into a bit of maze," the King & Wood Mallesons strategic counsel told AAP.
"It's either going to be clearly invalid or likely unworkable, but probably both."
Mr Watson said arbitration existed for disputes over flexible work arrangements and argued a need to change that remedy had not been demonstrated.
He compared the proposal to Victoria's wage theft laws, which were subject to High Court challenge before their repeal after the Albanese government instituted federal legislation.
"This is a lawyers' picnic," Mr Watson said.
"Why are you creating all this work for lawyers?"
She defended her claim Liberals across the country were "drawing up plans to abolish work-from-home and force workers back to the office".
Opposition Leader Brad Battin denied it was a touchy subject internally after Peter Dutton backflipped on ending working from home for public servants during the Liberals' disastrous 2025 federal election campaign.
The state Liberal leader is waiting to see the detailed legislation before the party decides its stance.
Senior federal minister Tanya Plibersek said the Albanese government wasn't going to give its Labor colleagues' plan a "tick or a cross" when asked if it would step in to overrule the state.
An Australian-first plan to legislate the right to work from home could become a "lawyers' picnic", experts warn.
The Victorian government has promised to introduce legislation in 2026 to create a right for employees to work from home two days a week.
The laws are yet to be drafted but the right is slated to apply to all Victorian public and private sector workers who can reasonably do their job from home.
Carve-outs in the Fair Work Act allowed for protections under state anti-discrimination laws, employment lawyer Daniel Victory said.
But how wide the state Labor government cast the net could open the proposed laws to legal challenge, particularly from the private sector.
"The broader they make the right the greater the possibility of a challenge," Mr Victory told AAP.
Employers trying to "squeeze" staff to return to the workplace after the COVID-19 pandemic was a major "bone of contention", Maurice Blackburn's principal lawyer of employment and industrial law in Melbourne said.
He described working from home as a "fact of life" and said enshrining it as a right would help make it a "cultural norm" for businesses to reflect.
Industrial relations laws are set by the federal government and regulated by the Fair Work Commission.
Section 109 of the constitution dictates that if a state law conflicts with a Commonwealth law, the latter prevails.
Joellen Riley Munton, an expert in labour law at the University of Technology Sydney, noted the commission assessed working-from-home clauses in awards and enterprise bargaining agreements.
"It would be a very easy thing for someone who objects to the state law to just say 'I only have to abide by the federal laws'," Professor Munton told AAP.
"That will be the obstacle for the effectiveness of any Victorian law."
Former Fair Work Commission vice president Graeme Watson agreed the proposed right, if as general as initially described, was headed for a clash with federal laws.
If Victoria's Equal Opportunity Act was chosen as the vehicle to legislate the right, he said the laws would have to establish what discrimination they were guarding against.
"Then you're proceeding into a bit of maze," the King & Wood Mallesons strategic counsel told AAP.
"It's either going to be clearly invalid or likely unworkable, but probably both."
Mr Watson said arbitration existed for disputes over flexible work arrangements and argued a need to change that remedy had not been demonstrated.
He compared the proposal to Victoria's wage theft laws, which were subject to High Court challenge before their repeal after the Albanese government instituted federal legislation.
"This is a lawyers' picnic," Mr Watson said.
"Why are you creating all this work for lawyers?"
She defended her claim Liberals across the country were "drawing up plans to abolish work-from-home and force workers back to the office".
Opposition Leader Brad Battin denied it was a touchy subject internally after Peter Dutton backflipped on ending working from home for public servants during the Liberals' disastrous 2025 federal election campaign.
The state Liberal leader is waiting to see the detailed legislation before the party decides its stance.
Senior federal minister Tanya Plibersek said the Albanese government wasn't going to give its Labor colleagues' plan a "tick or a cross" when asked if it would step in to overrule the state.