Introduction of Working From Home Provisions in the Clerks Award

The Fair Work Commission (Commission) has handed down a significant decision that will reshape how working from home (WFH) arrangements are managed under the Clerks – Private Sector Award 2020 (Clerks Award).[1] While the Full Bench stopped short of creating an enforceable “right to work from home”, it has determined that the Clerks Award should be amended to include a formal mechanism for employees to request WFH arrangements and for employers and employees to agree on flexible working arrangements tailored to remote work.

What has prompted the inclusion of working from home provisions in the Clerks Award?

The decision arose from the Commission’s Modern Awards Review 2023-24 Final Report (Final Report),[2] which identified that the Clerks Award was of particular relevance to WFH provisions, as WFH arrangements are more accessible to and adopted by employees who perform clerical work. During the COVID-19 pandemic, Schedule I was inserted into the Clerks Award, which highlighted the significance of WFH provisions to the Clerks Award.

The Commission provided findings about the extent and characteristics of WFH under the Clerks Award in their decision. Research showed that approximately two-thirds of clerical employees have access to WFH arrangements, that most requests to work from home are approved, either fully or partially, and that a significant proportion of WFH arrangements are employer-initiated.

However, the Commission rejected union proposals that would have introduced an award-based right to request WFH, modelled on the Flexible Working Arrangements provisions in section 65 of the Fair Work Act 2009 (Cth) (FW Act). The Bench found there was insufficient evidence that employees were routinely being denied access to reasonable WFH arrangements[3] or that employers were refusing requests on arbitrary or discriminatory grounds. Instead, the Commission opted for a “facilitative” approach.

What is the proposed change?

The draft determination proposes the insertion of a new clause 5A titled Requests for Working From Home Arrangements.

Under the proposed clause:

• An employee may request a WFH arrangement in writing (clause 5A.3)
• The request must specify the days the employee wishes to work from home (clause 5A.3)
• The employer may agree to the arrangement (clause 5A.1)
• Any agreement must identify key details, including (clause 5A.6):
  • approved WFH days;
  • the approved work location;
  • any modified award provisions;
  • any facilitative agreement;
  • the commencement date; and
  • how the arrangement can be terminated.

Unlike section 65 requests under the FW Act, the proposed Clerks Award clause does not require employers to grant requests, respond within a prescribed timeframe, or establish “reasonable business grounds” for refusal.

This distinction avoids creating a substantive entitlement for employees covered under the Clerks Award to work from home and has instead established a procedural mechanism to facilitate agreement.

Flexibility around hours and breaks

An important aspect of the proposed section 5A of the Clerks Award is the ability for employers and employees to agree to modify certain award provisions that can otherwise create compliance risks in a WFH environment.

The proposed clause allows variations under clause 5A.4 to:

• clause 13.6(a), which requires ordinary hours to be worked continuously;
• clause 13.6(b), which provides that ordinary hours are worked at the employer’s discretion;
• clause 15.2 relating to rest breaks; and
• clause 15.3 relating to meal breaks.

The Commission accepted evidence at paragraph [15] of the decision that many existing WFH arrangements do not neatly fit within these traditional Clerks Award requirements, and employees often adjust their work patterns around caring responsibilities, appointments or personal commitments. Equally, many employees working remotely exercise greater autonomy over when they take breaks and how their hours are structured.

Without a formal mechanism permitting these arrangements, employers may be exposed to award compliance risks, so the proposed clause creates a compliant framework for documenting these WFH arrangements.

What will not change?

The Commission rejected proposals seeking broader modifications to the Clerks Award. Notably, the Full Bench declined to:

• expand the spread of ordinary hours;
• remove or alter overtime obligations;
• reduce minimum engagement periods;
• alter Sunday minimum payment provisions; or
• reduce allowances such as first aid, uniform laundering or overtime meal allowances.

The Commission also indicated that recent legislative protections relating to overtime and penalty rates may limit its ability to make variations that effectively reduce existing employee entitlements. At paragraph [112] of the decision, the Commission noted that the WFH term does not disturb existing award entitlements to penalty rates or loadings for working overtime, unsocial, irregular, or unpredictable hours, weekends, public holidays or shifts. For employers, this means that the new clause is not a mechanism to reduce labour costs or remove Clerks Award obligations, but is designed to facilitate flexibility.

Want to know more?

If you would like to discuss the proposed changes further, please call NRA Legal for a confidential conversation on 1800 572 679.

Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 225 27 August 2026

Draft determination, August 27, 2026

[1] Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 225

[2] Fair Work Commission, Modern Awards Review 2023–24 (Final Report, 18 July 2024).

[3] At paragraph [66], the Bench found that only 6.1% of surveyed employees who had made a request to work from home had had that request denied.