There is a particular kind of political confidence that comes from daring your opponents to sue you. Victorian Premier Jacinta Allan has now demonstrated it. Asked about the prospect of a High Court challenge to her government's proposed work-from-home laws, Allan has effectively said: go ahead, try it. According to the Sydney Morning Herald, Labor is openly willing to face that challenge, banking on legal advice that the legislation is constitutionally sound.
The policy itself is straightforward enough. Premier Allan has announced legislation to protect the ability of employees to work from home. Under the proposed law, if you can reasonably do your job from home, you will have the right to do so for at least two days a week, covering both public and private sectors. The twist added this week: all businesses will be subject to the policy, Premier Allan announced on Tuesday. The premier had signalled an exemption would be considered for small businesses when launching a consultation period in August, but that concession was quietly closed off in a cabinet meeting on Monday.
The constitutional question hanging over all of this is real and not trivial. Section 109 of the Australian Constitution dictates that if a state law conflicts with a Commonwealth law, the latter prevails. Victoria long ago referred its workplace relations powers to the federal government, and legal observers have noted this creates an obvious vulnerability. The new legislation is likely to face constitutional challenge on the basis that the Victorian government does not have power to make laws relating to workplace relations; however, the government may seek to frame the laws under its powers relating to health and safety or equal opportunity. Premier Allan has said the government is considering multiple legislative options, including the Equal Opportunity Act 2010 (Vic) as a path forward.
Allan's response to the legal sceptics has been pointed. She has repeatedly pushed back against claims the move may not be legal, pointing to advice about an "explicit provision" in the Fair Work Act for state-based anti-discrimination laws. Her public line is blunter still: "We have advice that it is constitutionally valid," Ms Allan said. "But let's be clear, what does it say about someone who wants to race off to the High Court to strip away a worker's right to work from home."
That framing tells you everything about the political strategy here. The 2026 Victorian state election will be held on 28 November 2026. The Sydney Morning Herald reports that if the legislation passes unamended, it will come into effect nearly three months before polling day, lodging a tangible new entitlement in voters' minds before they cast a ballot. The political calculation is transparent, and it is not unreasonable to call it what it is: this is legislation designed partly to campaign on.
The business community is not taking it quietly. The Australian Industry Group has described the Victorian government's announcement as "political gameplaying which will have reverberations across the economy and on employment in Victoria." Council of Small Business Organisations Australia chair Matthew Addison said the non-exemption would create a cost and compliance burden for all businesses, including "mum and dad" operators and sole traders with as few as one employee. The Victorian Chamber of Commerce and Industry's acting chief executive Scott Veenker put the competitive threat plainly: "We have borders but businesses and capital don't. The economy is in such a fragile state ... this is just another reason for people to choose other states or other countries to trade in."
These are not fringe concerns. Victoria has developed a well-documented reputation in some business circles for regulatory accumulation, and the "Anywhere But Melbourne" sentiment that has circulated among investors is a real political liability for the Allan government. Legislating a new compliance obligation onto every employer in the state, including sole traders, without exemption, without a completed cost-benefit analysis, and with the law's constitutional validity still unresolved, is an unusual sequence of events.
The strongest case for the other side deserves a fair hearing. Professor Peter Holland of Swinburne University said small businesses could benefit from providing flexibility to workers in a tight labour market, and compared the reforms to Australia introducing paid maternity leave in 1973 and superannuation in 1992. The parallel is instructive. Both of those reforms attracted fierce resistance from employer groups at the time; both are now accepted as unremarkable features of working life. More than a third of Australian workers, including 60 per cent of professionals, already regularly work from home. The question is whether a mandated legal right represents the next logical step, or a solution in search of a problem that the market is already resolving.
The Victorian opposition is trying to avoid being wedged politically on the legislation, with Liberal leader Jess Wilson maintaining she supports working from home while demanding more detail from the government. It is a sensible position. The policy is popular with a large proportion of voters; opposing it outright is a losing argument. But demanding detail before legislating is not opposition for its own sake. The ambiguity embedded in the word "reasonably" is doing enormous work in this policy, and it has not been resolved. "We haven't tested it and it's ambiguous by nature," Swinburne's Professor Holland acknowledged.
The honest synthesis is this: the principle of flexible working is not seriously in dispute, and the government is right that many employers still resist it without good reason. But legislating a right whose constitutional foundations are contested, without a small business carve-out, without settled enforcement mechanisms, and with a state election providing the obvious backdrop, raises legitimate questions about sequencing and sincerity. Reasonable people can want workers to have genuine flexibility and still worry that this particular bill, in this particular form, is being rushed for reasons that have more to do with the November ballot than with sound workplace policy. The Fair Work Commission is already considering a work-from-home term in the Clerks Award, and the Victorian Parliament would do well to let that process inform its own. Good law is rarely written in a hurry, and this one still has questions to answer before it deserves to become one.