The Fair Work Commission has released a draft determination adding a working from home term to the Clerks – Private Sector Award 2020.

It does not give anyone a right to work from home. It gives employees a right to ask, and it gives both sides a way to bend the award’s hours and breaks rules so a home-based arrangement is not technically in breach.

Submissions on the drafting close 5pm AEST on Thursday 17 September 2026.

What happened

A Full Bench of Justice Hatcher, Deputy President O’Neill and Commissioner McKinnon handed down the decision in AM2024/34 on 27 August 2026. Citation is [2026] FWCFB 225. The proposed provision is clause 5A.

The Commission started this case itself on 29 August 2024. No union or employer group applied for it. The Final Report of the Modern Awards Review 2023-24 flagged the issue and the Commission picked it up.

The Clerks Award went first for two reasons. It covers work that is obviously capable of being done remotely, and it is one of the most widely applied awards in the country.

This is also a test run. The Commission has flagged the clause as a possible model term for other modern awards, with or without changes. If the Clerks Award does not cover you, read it anyway. This is the shape of what is coming.

What the Full Bench decided not to do

The Bench weighed up whether to go further and impose a general right to work from home. It declined.

It found working from home is already widespread in clerical work, that most requests get approved at least in part, and that there was no evidence of employers routinely refusing on arbitrary, capricious or discriminatory grounds. On that evidence, it saw no case for forcing employers to approve requests more often than they already do.

So the substantive legal position on refusing a request has not moved. What has moved is the paperwork.

The actual problem being fixed

The Clerks Award was written for an office. It assumes work performed continuously, inside a set span of ordinary hours, with breaks taken at prescribed times.

Working from home does not look like that. People break to collect kids. They work in two blocks. They start at 7 and finish at 3. Under the award as drafted, a lot of that is non-compliant, even where the employee asked for it and everyone is happy.

The Bench called this a practical mismatch. Clause 5A is the fix.

What clause 5A would do

Create an express right to request. Employees could make a written request to work from home.

Allow a written agreement. Employer and employee could sign off on an arrangement covering the approved days, the approved location, any award terms being modified, when it starts and how either party ends it.

Unlock specific award flexibility. By agreement, the parties could vary the requirement to work hours continuously, the timing of meal and rest breaks, and shift start and finish times. They could also use make-up time, an altered spread of ordinary hours, and time off instead of overtime pay.

Impose record-keeping. The agreement must be made without coercion or duress, given to the employee, and kept as a time and wages record.

What it would not do

It does not create a general right to work from home.

It does not touch overtime or penalty rates. Those entitlements survive intact.

It does not replace individual flexibility arrangements or the NES right to request flexible working arrangements under section 65 of the Fair Work Act. Clause 5A sits alongside both. You will be running three mechanisms, not one, and they have different tests and different consequences.

The part employers should actually pay attention to

The Full Bench indicated that making a request under the proposed term would be the exercise of a workplace right.

That matters. Adverse action against an employee because they exercised a workplace right is a general protections claim, with a reverse onus and no compensation cap. A manager who quietly sidelines someone for asking to work from home Wednesdays is not creating an award breach. They are creating a much bigger problem.

Disputes about a request could also be run through the Clerks Award dispute resolution procedure, which puts the Commission in the room.

Nothing changes yet

The draft determination creates no binding obligation. Do not rewrite your policies on the strength of it.

Wait for the final determination and its operative date. That is when it counts.

The submission window is narrower than it looks

The Bench has confined this phase to drafting and technical issues. It is not taking further submissions on whether the Clerks Award should have a working from home term at all. That question is settled.

If the wording creates a practical problem in your operation, raise it before 5pm AEST on Thursday 17 September 2026. Arguing the principle is a waste of your time.

What to do now

Confirm your award coverage. Plenty of employers assume the Clerks Award covers the whole office. It does not, and industry awards often override it. Get this right first.

Find out what your arrangements look like on paper. Most working from home in Australian businesses runs on a verbal understanding or an email from 2020. If clause 5A lands in its current form, informal will not survive it. The written agreement is the mechanism.

Look at where people are actually working outside the span. If a lot of ordinary hours are being worked at non-standard times right now, with nothing signed, that is a live overtime exposure today. Not a future one.

Brief your managers on requests. Anyone who handles a working from home request needs to know it is likely to be a workplace right. That conversation is worth having before the term is finalised, not after.

Read the primary sources

• Full Bench Decision [2026] FWCFB 225
• Draft determination
• Working from home – Clerks – Private Sector Award 2020 (AM2024/34) major case

Source

This article draws on Fair Work Commission proposes new working from home term for the Clerks Award: what employers need to know by Joe Murphy, Caroline Beasley and Lara Roets of Cowell Clarke Commercial Lawyers. [LINK]

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Clerks Award WFH decision

Does the Clerks Award now give employees a right to work from home?

No. The Fair Work Commission's draft determination creates a right to request working from home, not a right to work from home. The Full Bench specifically declined to impose a general entitlement, finding that most requests are already approved and there was no evidence of employers refusing on arbitrary or discriminatory grounds. The substantive position on refusing a request has not changed.

What is clause 5A of the Clerks Award?

Clause 5A is the proposed working from home term for the Clerks – Private Sector Award 2020. It would create an express right to request working from home, allow a written agreement between employer and employee covering approved days and location, and unlock specific award flexibility around continuous hours, break timing, and shift start and finish times. It also imposes record-keeping obligations.

When do submissions on the working from home clause close?

Submissions close at 5pm AEST on Thursday 17 September 2026. The Fair Work Commission has confined this phase to drafting and technical issues only, it is not accepting further submissions on whether the Clerks Award should have a working from home term at all, as that question is settled.

Does the Clerks Award working from home clause apply to my business?

Only if the Clerks – Private Sector Award 2020 covers your employees, and many employers assume it covers their whole office when it does not. Industry awards often override it. The Commission has also flagged clause 5A as a possible model term for other modern awards, so employers outside the Clerks Award should treat it as an indication of what is coming.

Is a working from home request a workplace right?

The Full Bench indicated that making a request under the proposed term would be the exercise of a workplace right. That matters because adverse action against an employee for exercising a workplace right is a general protections claim, which carries a reverse onus of proof and no compensation cap. Managers who handle working from home requests should be briefed before the term is finalised.