After Victorian Premier Jacinta Allan announced plans to legislate new work-from-home protections, workplace legal experts say it could be highly challenging to square those major reforms with existing Commonwealth laws.
Speaking at the Victorian ALP caucus on Saturday, Allan revealed plans to introduce a right for private and public employees to work from home up to two days a week.
By giving workers “back their time — to be parents, to be carers, to simply live — we create a fairer Victoria for everyone,” she said.
But creating blanket WFH rights in state law will be no easy feat, given the protections that already exist within federal legislation.
“Clearer direction for employers and employees about entitlements should be welcomed,” said David Catanese, a partner at law firm Hall & Wilcox.
But there are challenges enacting state laws that may conflict with Commonwealth laws, and the devil is going to be in the detail of the state laws.
Victoria handed most of its powers to create industrial relations legislation to the Commonwealth in 1997, bringing its public and private workers under nationwide laws.
In Victoria and nationwide, certain categories of employees can already request the right to work flexibly, including WFH, under the Fair Work Act.
And in circumstances where state laws contrast with Commonwealth legislation, the latter generally wins out.
Section 109 of the Constitution says Commonwealth laws will prevail whenever there are inconsistencies between state and Commonwealth legislation, said Catanese.
Athena Koelmeyer, a principal and director at Workplace Law, agreed that enforcing new WFH rights in Victoria would be highly challenging given the existing Commonwealth standards.
“Industrial relations is firmly the domain of the federal government… From a legal standpoint, this seems doomed to failure”, she said.
Catanese said the Victorian government could consider Section 66 of the Fair Work Act, which says states can legislate about flexible working arrangements in a way that is inconsistent with the Act, but only if the state-level entitlements are better for employees overall.
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Victoria’s anti-discrimination legislation in focus
But there is another potential workaround, involving the state’s anti-discrimination laws.
The Allan Labor government has not released draft legislation, but is reportedly considering expanding the state’s Equal Opportunity Act to advance its goals.
That piece of legislation says employers should not unreasonably refuse to accommodate an employee’s responsibilities as a parent or carer, including their requests to work partially from home.
Those laws could be expanded to make working from home arrangements a right for more categories of employees, said Catanese.
Alternatively, all-new entitlements could be inserted, “but only within the areas of life dealt with in the Equal Opportunity Act, which relevantly include employment”.
Nevertheless, “for the state government to create a right for employees to work at least two days from home, and to create a system that is accessible and practical without creating additional red tape and disputation is going to be very, very difficult, in my view,” said Catanese.
Employer groups have also challenged the Allan government’s plan, claiming it will constrict workplaces while potentially overlapping relevant Commonwealth laws.
“The Victorian Government should leave the regulation of working from home requests to the national workplace relations laws and system,” Australian Industry Group’s Victorian lead Tim Piper said on Saturday.
“The last thing Victorian businesses need is to be saddled with a patchwork of inconsistent and unworkable obligations.”
