As Victoria moves toward introducing a statutory right for employees to work from home up to two days a week, many employers are asking an important question: will we still have the ability to say no? The answer is yes – but only when refusals are handled carefully, transparently and with proper reasoning.
Two recent Fair Work Commission decisions illustrate this clearly. In Johnson v PaperCut, the Commission accepted the employer’s direction to attend the office because the contract allowed work at multiple locations, hybrid arrangements had been introduced following consultation, and the employee hadn’t made a formal flexible‑work request before refusing to attend. The dismissal was upheld because the direction was found to be lawful and reasonable.
By contrast, in Chandler v Westpac, the employer’s refusal wasn’t supported. Westpac failed to consult, missed the 21‑day response deadline, and couldn’t show evidence‑based business reasons for refusing a longstanding employee who had successfully worked remotely for years. The Commission ordered the workplace to approve the arrangement.
These decisions make one thing clear: even before Victoria’s reforms take effect, it’s not simply a question of what employers decide, but how they reach that decision. This will only become more important once the right to work from home is embedded in Victoria’s Equal Opportunity Act, with disputes first going to the Victorian Equal Opportunity and Human Rights Commission and then to VCAT if unresolved.
The coming laws won’t grant every employee an automatic right to stay home, and will apply only to roles that can reasonably be performed remotely. Employers will still be entitled to refuse inappropriate requests, but refusals must be made on clear, documented business grounds rather than being based on general statements about collaboration or fairness. That’s consistent with a broader move toward more structured, evidence‑based handling of flexible‑work decisions, something employment experts say is becoming necessary as inconsistent informal practices create legal risk.
For employers, the practical message is simple: treat every WFH request as a formal decision making process. Consult with the employee, consider the specific circumstances of their role, respond within required timeframes, and document the reasons: especially where the request is refused.
This approach will not only help organisations comply with the upcoming Victorian reforms, but will also place them on stronger footing if a dispute arises.
Reach out to our team at Rankin Business Lawyers for advice or assistance to support consistent decision making in your business.
Stacey Brennan
Lawyer
