It’s hard to think about the pandemic without picturing workers on Zoom meetings being told to unmute themselves.

While trackies and ugg boots became the pandemic work uniform for some, health practitioners were draped in head-to-toe in PPE, treating patients in hospitals.

Was this a sign of the future? A two-tiered workforce, where creature comforts were afforded to some and not others?

If you thought the working from home (WFH) debate was over, think again!

Victoria has announced plans to legislate a right to work from home at least two days a week. It has triggered a flurry of questions: Who would the law apply to? Aren’t there already WFH rights that exist? How would it work? And, is it even legal?

Let’s take a pulse check of the WFH debate and the conversation around flexible work becoming a legally enforceable right.

COVID-19 launched a new WFH era, with remote work jumping from roughly 5% of workers in 2016 to more than 20% in 2021. Today, more than one in three of us enjoy regular WFH privileges.

WFH was a way of halting the spread of COVID-19: allowing office workers to stay at home instead of commuting and socialising.

In the years since, the hybrid work style has stuck around. Many offices have adjusted to the growing appetite for a split face-to-face/ WFH model of work.

36% of Australians now WFH regularly (as at August 2024), according to the Australian Bureau of Statistics.

Hybrid work has led to a rush of Australians relocating from the busy (and expensive) inner cities in favour of quieter ‘satellite’ cities, like Newcastle, Geelong, and Bunbury.

This ‘peri-urban’ sprawl has widened with evolving flexible work models.

Victoria now wants to make it a legal right to WFH for private and public sector workers.

The right would apply in cases where it’s considered reasonably feasible, meaning the law wouldn’t have universal coverage. For example, nurses would still need to attend hospitals, and builders would still be expected on the construction site.

However, in the case of workers who have a “reasonable” case to WFH, the legislation would legally protect their right to work remotely twice a week.

A legal definition of “remote work” and the test of “reasonableness” will be fleshed out in consultation, and the Victorian Government plans to introduce legislation in 2026.

Premier Jacinta Allan underlined that WFH protections will help women, young families and people with caring responsibilities have a more adaptive workplace arrangement.

Unions strongly support the move to make WFH a legal right.

Victoria’s Opposition Leader – Brad Battin – also expressed his general support for hybrid work models, which he said is “part of the future”.

Should WFH become a legal right next year, it’s unlikely – based on Battin’s current remarks – that it would be scrapped should he win next year’s state election.

During the federal election, the Coalition proposed mandating five days a week in the office for public sector workers.

However, the Coalition ditched this policy after it faced intense backlash.

Then-leader Peter Dutton apologised for the proposal, admitting the party “got it wrong”.

When it comes to the WFH debate, there is data both for and against remote work.

Jacinta Allan pointed to productivity benefits – squeezing greater output from the same amount of hours worked – of working from home, with some research showing a 20% increase in productivity.

However, Melbourne has the highest proportion of empty offices out of all Australian capital cities, according to a new report by the Property Council of Australia.

So if fewer office workers are going into the CBD, businesses that rely on city employees (like cafés and hairdressers) could lose customers due to lower foot traffic.

Business groups have raised concerns about establishing legally enforceable rules across all companies.”

“What works for one company may not suit another. Flexibility should be driven by the needs of individual businesses – not imposed by legislation,” said Australian Industry Group's Victorian Head Tim Piper.

Victoria’s WFH rights could hypothetically face a bigger legal challenge.

Let’s start with the current state of the law:

The Fair Work Act sets the standards of workplaces right across Australia.

There is a right at a federal (national) level to request WFH.

Managers and bosses can refuse the request when there is a “genuine business reason”, such as if it’s too costly or could hamper efficiency.

So, there’s no legal right to WFH – only to ask for it.

In cases where state and federal legislation differ, national law overrides the states.

This means there could be a constitutional issue over whether a future right to WFH in Victoria is legally enforceable.

Consultation will consider how the legislation would work, including whether it could face a challenge in the High Court.

The Federal Government has pointed to the Fair Work changes that it introduced two years ago to make WFH a requestable right.

Workplace Relations Minister Amanda Rishworth told TDA, “flexible working arrangements, including working from home arrangements, can benefit both workers and employers”.

However, Rishworth didn’t comment directly on Victoria’s proposals and whether the federal government would consider closing a loophole to legal challenges.

Prime Minister Anthony Albanese made similar comments on Thursday, when he defended Allan’s proposal, which he called “consistent” with the Federal Government’s stance.

Albanese told reporters that the Victorian Government “is responding to what the community have said, which is that flexible working arrangements help workers and they help employers.”

Speaking to the ABC, senior Coalition Shadow Minister Andrew Bragg said: “My view is that work from home is very good. I do it myself, and it should be facilitated”.

WFH splinters opinion. The debate will continue. And TDA will follow it – every step of the way.

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