Hansard debates

Anthony MARSH (Nepean) (12:48): We recognise that flexible work is now an established feature in many Victorian workplaces. Where a role can be performed remotely, working from home can reduce travel time, assist employees with family responsibilities and help employers attract and retain staff. When I had my own business I worked from home, over a decade ago, and I had many employees over that time that worked from home as well, well before this became the norm during COVID. But this debate should not be reduced to a false binary choice between supporting flexibility and opposing it. The question is whether this bill establishes a workable, balanced and legally coherent framework to enable this to occur. In its present form the opposition believes it does not.

This bill creates a statutory right for eligible employees to work from home for up to two days each week or a proportionate period where employees working fewer than 38 hours in a given week can take a proportionate work-from-home period, where doing so is reasonable. That entitlement sits in addition to existing rights under state and Commonwealth laws, awards, enterprise agreements and workplace determinations. An employee may nominate the days and times that they propose to work from home, and the employer must generally accept that arrangement unless they deem it not reasonable. Even where a particular proposal cannot be accommodated, the employer may still be required to offer an equivalent period on different days or at different times or a lesser period that is reasonable. A complete refusal is available only when no period of working from home is deemed to be reasonable. That moves beyond the right to request flexibility and creates a presumptive entitlement, with the employer carrying the burden of establishing why the arrangement should not proceed. It also places ordinary workplace decisions within the Equal Opportunity Act 2010, exposing employers to a new enforcement regime through the Victorian Equal Opportunity and Human Rights Commission and VCAT. Routine decisions about where, when and how work should be performed may therefore become subject to a formal dispute or litigation.

The opposition have proposed a series of practical and reasonable amendments to address the bill’s deficiencies. First, we propose the delay of the operation of the liability and enforcement provisions until 1 January 2027 – not the commencement date. Employers should have adequate time to understand their obligations and amend workforce policies, assess risks and train managers before becoming exposed to any formal proceedings.

Second, we seek to impose a cap of $1000 on the reasonable costs that an employer might be required to meet. The bill requires employers to pay costs necessary to enable home-based work, including essential equipment, software and secure access to information systems, but it provides no clear outer limit, and we heard many examples of where that could be quite extreme earlier in this debate. The statutory entitlement should not create an open-ended financial liability, particularly for small businesses already facing rising wages, insurance costs, energy costs and compliance costs. Employers need to know the potential cost of this arrangement before it commences, rather than discovering the extent of their liability when it is already too late.

Third, our amendments address occupational health and safety and workplace compensation risks. A company director should not incur personal liability under the occupational health and safety legislation from an incident arising because an employee is working from home in a place the director does not control or using a desk they built themselves, for example. Nor should such an incident be taken into account when determining an employer’s WorkCover contribution or insurance premium. Employers must take reasonable steps to support safe working arrangements, but they cannot inspect, supervise or eliminate every hazard within an employee’s house. The law should not impose a liability as though the home were an ordinary workplace under the employer’s direct management.

Fourth, where an employee’s primary place of residence is in Victoria, we propose that a work-from-home location should also therefore be in Victoria unless the employee or employer otherwise agree. The bill should not create a unilateral entitlement to work interstate, with the tax, insurance, regulatory, data security and practical complications that may follow that decision. An interstate arrangement may be perfectly appropriate under the circumstances, but it should be by agreement rather than by assumption. We also propose to ensure that the right-of-entry regime under the Fair Work Act 2009 does not apply to a private residence merely because an employee is exercising this entitlement. A family home should not become a workplace entry point for permit-holders simply because paid work is being performed there. We heard the Minister for Cost of Living say earlier that that is not the case, but again, we can clarify that quite simply with these simple amendments.

Our amendments would also protect employees from unintended land tax consequences. Exercising a statutory right to work from home should not alter the land tax treatment of a person’s home. Parliament should not create an employee entitlement that may expose a household to unforeseen and unrelated financial penalties.

These amendments are not intended to frustrate flexible work. As I said at the outset, I have supported it and done it myself with my own business. They are practical safeguards designed to define the boundaries of the entitlement and allocate cost, responsibility and risk more fairly. There is also the broader question of equity. A lawyer, an accountant or an administrator may be able to work remotely quite easily, but a nurse, a tradesperson, a retail worker, a mechanic, a hospitality employer or a tourism operator cannot. That distinction is particularly apparent on the Mornington Peninsula and in Nepean. Our local economy depends heavily on hospitality, accommodation, tourism, construction, retail, health services and other businesses where working from home is simply not an option. A general statutory entitlement risks creating two classes of workers within the same workplace – those able to access this benefit and those that cannot. The bill also confines the matters an employer may consider, and in several areas requires significant adverse impact before operational concerns carry decisive weight. That threshold may be difficult for an employer to establish in advance, particularly where the effect is cumulative rather than immediate.

Productivity is not always measured only when an individual can complete the assigned tasks at home. It involves supervision, mentoring, teamwork and professional development, workplace culture, customer service and the transfer of knowledge between experienced and less experienced staff. That is something we have seen over the last few years, particularly with new people coming into workplaces. They are not getting that knowledge transfer with their superiors or more experienced staff within their office. Those considerations are real, but they can be difficult to quantify before the harm occurs. A business should not be required to wait until productivity training or customer service has significantly deteriorated before its concerns are treated as legitimate. Questions also remain about privacy, cybersecurity, confidentiality and responsibility for incidents beyond the employer’s direct control. These matters determine who carries the risk, who pays the costs, and whether a business can confidently comply with the law.

The opposition has received constant adverse feedback from employers, business representatives and legal practitioners across many sectors. Their concern is not about the flexible work itself, but really their concern is about the cooperative workplace practice being converted into a rigid legal entitlement without adequate limits, protections or regard for the diversity of Victoria’s workplace. Flexibility works best when it is practical, reciprocal and built on trust. It should support employees without making employers responsible for the risks that they cannot reasonably manage. It should recognise modern work without pretending that every job, every workplace or every industry is exactly the same. The government has chosen to legislate in a very complex area and now has an obligation to ensure it gets the detail right. I believe the opposition’s amendments are constructive, proportionate, very reasonable and quite necessary, and they preserve genuine flexibility while providing clearer limits on costs, liability, location, privacy and implementation. Again, it is not a binary choice whether working from home should be allowable or not, or legislated as a right or not, but making sure we get the details right and we get a good position that makes it something that can be implemented for businesses without unforeseen costs and consequences.