Editorial
Allan’s working-from-home push is an affront and a furphy
Premier Jacinta Allan can paint her latest foray into workplace relations any colour she chooses, but there is an overarching image that emerges. That is, this is at best good politics, not good policy.
At last weekend’s Victorian Labor state conference, Allan unveiled the government’s new policy of seeking to enshrine in law a right for workers in the public or the private sector to work from home two days a week where reasonable.
Premier Jacinta Allan at the state Labor conference at the weekend.Credit: Eddie Jim
It would be the first such policy by a state. Self-evidently, that right could not extend to jobs that need to be performed on-site, such as emergency services. Consultation will be led by the Department of Premier and Cabinet. In spruiking the policy, Allan said it was good for families and the economy. “If you can do your job from home, we’ll make it your right – because we’re on your side,” she said.
There is no doubt there has been a revolution in working arrangements wrought by COVID-19. The workplace is a much more flexible environment than pre-pandemic, a development that has created opportunities for many people, especially those with caring responsibilities and disabilities.
The Australian Bureau of Statistics says about a third of the nation’s employees work from home for part of the week. The premier could be seen to be merely acknowledging this trend and seeking to cement it into law. She could also be seen to be grasping at a distraction that will avert critical eyes from the performance of her government amid some controversial cuts as its strained budget position bites.
If the plan puts pressure on the Liberals to declare their position with an election due next year, that could only be seen as a bonus. Federal Labor at this year’s election was the beneficiary of Peter Dutton’s ill-thought-out plan to force public servants back to the office. As The Age reports today, Labor considered new federal laws in this space – as it is entitled to do. The intervention of the Victorian government into the relationship between employer and employee seems more like Dutton’s intervention but in the opposite direction.
Businesses are not the same, and to bring into law a right to work from home two days a week without regard to the particular circumstances of a business is wrong. As an aside, how was two days arrived at? Allan hasn’t said. How the policy would become a reality is not clear either. Victoria referred its powers to regulate private sector workplaces to the federal jurisdiction decades ago.
The Age has reported warnings, as has The Australian Financial Review, from legal experts that the proposal would almost certainly fall foul of Section 109 of the Constitution, that is, if state and federal law cover the same area, federal law prevails. If the Victorian parliament enacts work-from-home legislation, this would be ripe for a High Court challenge.
Not only that, but a full bench of the Fair Work Commission is already methodically considering a major case related to working from home, including the question of whether that means home, your beach house or while on holiday in Bali.
It is hard to see how a separate state consultation round could be an adornment to that process, which features thoughtful and detailed contributions from across the economy.
Allan has batted off these concerns, telling ABC radio: “The advice we have is that when it comes to the federal workplace arrangements, there’s the Fair Work Act, and there’s explicit provisions in the Fair Work Act for state-based anti-discrimination laws to apply. The Fair Work Act gives us the floor, and what we’re choosing to do is build on the floor and protect work-from-home as a right.”
This is a mischaracterisation. The Fair Work Act allows for employers and employees in industries, through awards, and workplaces, through enterprise bargaining agreements, to build plenty of things upon the floor of minimum national employment standards. This is what is happening, right now, through the Fair Work Commission’s award review.
Trying to twist human rights legislation to somehow include the right to work outside one’s workplace is an affront to the other democratically foundational rights protected.
The premier would be better advised to enact policies that help restore Victoria’s financial health than pursuing this unnecessary, constitutionally dubious vote-baiting furphy.
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