WFH entrenched but union push for more regulation rejected, Fair Work rules

The Fair Work Commission has handed down a significant ruling that working from home is now a permanent and entrenched feature of Australian workplaces, while simultaneously rejecting union efforts to expand workplace rights in this area. The decision acknowledges the profound shift in how and where Australians work since the pandemic, but concludes that this shift does not in itself signal problems requiring major new regulation.

The ruling emerged from a case in which unions sought to build on the prevalence of remote work to secure additional entitlements and formal protections for employees. Unions had argued that the rapid normalisation of working from home left workers vulnerable to inconsistent treatment and that a stronger national framework was needed.

Fair Work, however, determined that the fact remote work is widespread does not indicate the kind of systemic difficulties that would justify further regulation. This places the national industrial umpire's reasoning at odds with Victoria, which used the very pervasiveness of WFH as a central justification for its own legislation. Victoria’s laws, which require employers to properly consider worker requests to work from home, were premised on the idea that the new normal demanded a codified right. Fair Work’s decision undercuts that premise, suggesting that the market is already delivering flexible work outcomes without heavy-handed intervention.

The ruling is expected to be welcomed by employer groups, who have argued that additional regulation would reduce flexibility and impose administrative burdens on businesses. They maintain that existing enterprise bargaining and individual arrangements already accommodate WFH where it works, and that further rules would distort the labour market.

Unions, by contrast, are likely to be disappointed, warning that without stronger protections employees may face a gradual erosion of remote work options as employers push for a return to the office. They point to anecdotal evidence of employees having informal WFH arrangements withdrawn or made more restrictive.

The decision does not dismantle current WFH rights, but it signals that the Commission does not see a need for a more expansive statutory regime. The practical consequences for workers and employers will depend on how individual agreements are negotiated in the shadow of this ruling.

Why This Matters

The ruling sets the tone for national WFH policy and could influence future enterprise agreements and workplace disputes.
It creates a direct conflict with Victoria's legally codified WFH structure, potentially leading to inconsistent expectations across states.
For workers, it means existing WFH arrangements are unlikely to be strengthened through a national regulatory framework any time soon.

Background

Working from home moved from an emergency measure to a mainstream practice during the COVID-19 pandemic, and by 2023 a large share of white-collar workers were doing at least some days remotely. Unions increasingly sought to convert this informal practice into enforceable rights, arguing that flexibility should not depend on employer goodwill.

Victoria was the first state to move decisively on this front, introducing laws that gave workers the right to request WFH and obliging employers to formally assess those requests. The state justified its intervention partly by pointing to how entrenched remote work had become — the same premise that Fair Work has now declined to accept as a basis for further regulation.

The Australian Fair Work system has always treated flexibility largely as a matter for negotiation rather than prescription. This ruling reinforces that approach, but does so at a moment when the reality of remote work, and the disputes around it, are accelerating.

Key Perspectives

Unions: They argue that the widespread uptake of WFH proves it is a valued and necessary condition of work. Rejecting further regulation leaves workers exposed to unilateral decisions by employers, particularly during economic downturns or leadership changes.

Employer groups: They say flexibility is best negotiated directly between employers and employees. They view the ruling as a correction of regulatory overreach, and warn that duplicating Victoria's model nationally would harm productivity and workplace culture.

Victorian government: The state has maintained that its laws provide necessary certainty and fairness. Fair Work's dismissal of the underlying rationale could undermine the political credibility of that approach, though Victoria is not bound by it.

Skeptics and legal analysts: They note the ruling does not ban WFH protections, and that the real test will come in how enterprise agreements are drafted. Some caution that framing WFH as 'entrenched' could inadvertently support employer arguments that it should no longer be treated as a special, protected accommodation.

What to Watch

Whether the federal government uses this ruling to resist a national WFH law or to broker compromise legislation between states.
Whether unions launch fresh bargaining campaigns targeting individual industries or employers to lock in WFH terms.
Employer return-to-office policies may now be pursued more assertively, since Fair Work has signalled it will not intervene to enforce broad WFH mandates.
Any industrial disputes that arise from this ruling could set further precedents on how much weight the Commission gives to the 'entrenched' status of remote work.

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