The Allan-led Victorian Labor government introduced its ‘world first’ work from home legislation back in March before the wheels completely fell off the caboose.

In a press release issued at the time, then Premier Allan enthusiastically stated that if you can do your job from home, you’ll have the right to do so – no matter the size of your workplace. This idiotic law unsurprisingly found favour with many groups except, critically, employers and business.

New leader Ben Carroll has this week sought to avoid sipping from his predecessor’s poisoned chalice and is beating a retreat from this completely unworkable and ill-conceived legislation. He has artfully delayed the introduction until after the Victorian election to give himself an each-way bet. If there is regime change the law will likely be repealed or it won’t be his problem. If Labor wins and he retains the premiership he can ditch the laws or retain them, depending on how the winds are blowing.

There are myriad problems with the WFH laws. A difficult exam question or essay topic could be set for law students along the lines of: ‘Please consider and outline the various constitutional and other legal issues that might arise from the introduction of Victoria’s mandatory work from home laws?’ It’s astounding that the Victorian Parliament didn’t ask this obvious question when the law was passed, but then again, the same State Parliament passed another world first with the machete bin laws.

I outlined in a Spectator Australia piece in March some of the insuperable legal and fairness issues with implementing mandatory work from home laws.

Recently, legal commentators, journalists, and business groups have described many more issues with the law, and the deeper the consideration goes, the more significant the issues identified become. This is before implementation and based only on a desktop review of this grossly unsatisfactory legislation. Everyone knows that the weakness of a law can’t truly be discerned until it’s implemented and sought to be enforced.

The law was introduced in the absence of any demonstrated need or regulatory and business impact assessment and seemed to be a vanity project of the ex-Premier.

The pre-legislation consultation involved a survey of 37,000 Victorian workers who said the ‘right to work from home was extremely important to them’. No meaningful business consultation was undertaken, and the design of the law shows that no proper consideration was given to how it might be implemented or enforced.

By way of critical example, the law applies to all workers who can ‘reasonably work from home’. Who satisfies this test? Employees are entitled to work from home 2 out of 5 days and employer must offer that unless they can demonstrate ‘unjustifiable hardship’.

This is a heavy burden for a business to discharge. Does the business need to go broke or only suffer a dip in profitability? If there is a dispute about this test, and there will inevitably be many thousands, how will a court or tribunal determine these subjective criteria? Will the judge or decision maker spend a week or two in the workplace to make an assessment, or rely on affidavits and legal submissions?

These type of operational decisions and considerations cannot sensibly be left to the industrial courts to make. That would be crazy. The flood of legal actions where the requirements and limits of the law are tested will add nothing to the economy except to benefit the law firms and others involved in the industrial relations ecosystem, which will proliferate in the new environment.

For an economy that is on its metaphorical knees, the last thing Victoria needed is a confusing, heavy-handed, productivity-destroying and investment-sapping law that puts Victoria at odds with the rest of the country.

Of course, work from home arrangements have been proven to offer useful flexibility and can be singly, mutually and collectively beneficial. I’m an employer and many of our employees work very effectively from home and provide great value to our clients and the business. However, these arrangements need to be worked out by employees and employers, and business considerations are paramount. But to have this structure forced on a business, or employees for that matter, constitutes an egregious level of state overreach, and reflects the obvious and disturbing fact that most parliamentarians have never actually employed anyone or worked in a for- profit business.

Mandatory WFH arrangements can immediately render the capital and operational underpinnings of a business unviable. Premises and occupancy settings configured around in-workplace employment can become redundant or overly expensive if reduced to 3/5th’s utilisation. Leases often have multi-year terms. IT systems can be unworkable for remote working, and the basic modes of working can be turned on their head or made overly disruptive.

These laws also confer benefits, flexibility, and cost savings to office workers, the laptop classes and public servants, who already enjoy unprecedented levels of flexibility but offer nothing to tradespersons, retail workers, or factory workers, thus disproportionately rewarding the already low productivity sectors of the economy where flexibility is already relatively common.

Indeed, the whole premise of the WFH law is flawed as puts at the apex of all decision-making and operations a newly invented and hitherto non-existent ‘right to work from home’ over and above all other business considerations. This includes customer needs, business efficiency and rigour, quality control, productivity considerations, and organic and on-the-job learning opportunities.

Such a system can only result in adverse economic impacts and a lower appetite to employ workers. It will also make Victoria even less desirable for business than it already is. These laws are a huge own goal and a solution in search of a problem.

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