HR News · Updated 19 October 2026
The Fair Work Commission has finalised clause 5A, the working from home term for the Clerks Award. It starts on 26 October 2026. It still does not give anyone a right to work from home. Here is what changed from the draft, and what employers need to do this week.
Updated 19 October 2026: the clause is final
We first published this when clause 5A was a draft. The Full Bench has now handed down its final decision, [2026] FWCFB 281, and issued a final determination. The headlines:
- Clause 5A is final and operates from 26 October 2026. No lead time.
- Requests and agreements can describe a number, proportion or pattern of days, not just named days.
- Agreements must now say how the arrangement can be varied, not only how it ends.
- A new note confirms existing arrangements can be formalised under the clause.
- A request for a six month lead time was refused.
See exactly what changed from the draft. Sections tagged New or Updated reflect the final decision.
In this article
The Clerks Award now has a working from home clause. It lands in a week.
Key takeaways
- Clause 5A starts on 26 October 2026. There is no transition period.
- It creates a right to ask, not a right to work from home. Employers can still say no.
- By written agreement, employers and employees can bend the award’s rules on continuous hours, when hours are worked, and when breaks are taken.
- Existing informal arrangements can be formalised under the clause. Many of them need to be.
- Overtime and penalty rates are untouched.
- A request is likely to be a workplace right. Handle refusals, and what happens after them, with care.
What happened Updated
On 19 October 2026 a Full Bench of Justice Hatcher (President), Deputy President O’Neill and Commissioner McKinnon handed down [2026] FWCFB 281 in AM2024/34. It settles the final wording of clause 5A and publishes a final determination inserting it into the Clerks – Private Sector Award 2020.
The Bench confirmed its August view that the clause is necessary to achieve the modern awards objective. Whether the Clerks Award gets a working from home term is no longer a live question. It does.
| Date | Step |
|---|---|
| 29 August 2024 | The Commission starts the case on its own initiative, after the Modern Awards Review 2023-24 flagged the issue. |
| 27 August 2026 | August decision, [2026] FWCFB 225. Draft clause 5A published for comment. |
| 17 September 2026 | Submissions on drafting and technical issues close. |
| 19 October 2026 | Final decision, [2026] FWCFB 281. Final determination issued. |
| 26 October 2026 | Clause 5A operates. |
The Clerks Award went first because it covers work that is obviously capable of being done remotely, and it is one of the most widely applied awards in the country. The Commission has flagged clause 5A as a possible model term for other modern awards. If the Clerks Award does not cover you, read on anyway. This is the shape of what is coming.
What changed from the draft New
Seven parties filed submissions on the draft, including employer groups, unions and small business. The Bench took some of them on board. None of the changes alter how the clause works. They make it fit how working from home actually runs.
| Issue | August draft | Final clause |
|---|---|---|
| How days are described 5A.3 and 5A.6(a) |
The request had to specify the day(s) the employee proposed to work from home. | The request can specify days of the week, or a number, proportion or pattern of days. “Two days a week” now fits. |
| Changing the arrangement 5A.6(f) |
The agreement had to say how either party could terminate it. | The agreement must say how it can be varied by agreement or terminated by either party. |
| Existing arrangements New Note 1 |
Silent. | A request and agreement can cover a new arrangement or the formalisation of an existing one. |
| Drafting fixes 5A.3 and 5A.4 |
“Working for home” typo in 5A.4. Wordier ending to 5A.3. | Typo fixed. 5A.3 simplified. The other notes are renumbered. |
The day pattern change is the practical one. Plenty of arrangements are “two days a week, your choice” rather than “Tuesdays and Thursdays”. Under the draft, those would have needed rewriting. Under the final clause, they fit as they are.
The variation wording matters too. Most arrangements change at some point. A new team, a new school run, a new manager. Build the variation process into the agreement from day one.
No lead time New
Small business asked for six months before the clause took effect. The argument was that small businesses rely on payroll and workforce software providers, bookkeepers and advisers to put award changes into practice, and those providers need time to support recording clause 5A agreements.
The Bench said no, for two reasons. The clause is consensual, so it puts no compliance burden on an employer who does not agree to anything. And it did not want to delay the chance to agree new arrangements, or to legitimise existing ones that are technically out of step with the award today.
So it starts on 26 October 2026. One week after the decision.
What the Full Bench decided not to do
In August, the Bench weighed up whether to go further and impose a general right to work from home. It declined, and the final decision does not revisit that.
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 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 it stood, 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 does Updated
Creates an express right to ask. An employee can make a written request to work from home. It must specify the days of the week, or the number, proportion or pattern of days.
Defines working from home. Work at the employee’s residence, or at another location the employee chooses and the employer approves.
Requires a written agreement. If the employer agrees, the agreement must set out the days or pattern, the location, any modified award terms, any facilitative agreement, the start date, and how the arrangement can be varied or ended.
Unlocks specific award flexibility. Despite anything else in the award, the parties can agree to modify the requirement to work ordinary hours continuously, the employer’s discretion over when ordinary hours are worked, and the timing of rest and meal breaks.
Bundles in existing facilitative options. The arrangement can include an altered spread of ordinary hours, make-up time, changed shift start and finish times, and time off instead of overtime pay.
Imposes record-keeping. The agreement must be made without coercion or duress. The employer must keep it as a time and wages record and give the employee a copy.
Covers existing arrangements. New Note 1 confirms the clause can be used to formalise an arrangement that is already running.
What it does not do
It does not create a general right to work from home. Employers can still refuse.
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
In the August decision, the Full Bench indicated that making a request under the 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 on Wednesdays is not creating an award breach. They are creating a much bigger problem.
Disputes about requests can also be run through the Clerks Award dispute resolution procedure in clause 40, which puts the Commission in the room.
What to do before 26 October Updated
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 your existing arrangements. Most working from home in Australian businesses runs on a verbal understanding or an email from 2020. List everyone covered by the Clerks Award who works from home. If their arrangement bends the hours or break rules, a written clause 5A agreement is how you bring it into line.
Build a compliant agreement template. Cover every item in 5A.6, including how the arrangement is varied. Let it describe days as a pattern or proportion, not just named days.
Set up the request process. Requests must be in writing. Decide who receives them, who decides, and how the decision is recorded.
File agreements properly. Keep each one as a time and wages record and give the employee a copy.
Do not lean on anyone to sign. An agreement made under coercion or duress does not meet the clause. Formalising has to be a genuine agreement.
Look at where people are working outside the span. If 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. Anyone who handles a working from home request needs to know it is likely to be a workplace right, and that a refusal can end up in front of the Commission.
Update your working from home policy. Make it line up with clause 5A, the section 65 right to request and individual flexibility arrangements.
HR Command clients can use the Flexible Work Compliance Module and our policy and document templates, and call the Workplace Advice Line to talk through a specific arrangement.
The final clause 5A in full New
Highlighted text is new or changed from the August draft.
5A. Requests for working from home arrangements
5A.1 An individual employee may request, and an employer may agree to, an arrangement permitting the employee to work from home.
5A.2 Working from home means the performance of duties by an employee at their residence or at another location chosen by the employee that is approved by the employer.
5A.3 A request by an individual employee for a working from home arrangement must be made in writing and must specify the day(s) of the week, or the number, proportion or pattern of days, that the employee proposes to work from home.
5A.4 Despite anything else in this award, an individual employee and an employer may agree to modify the application of the following terms of this award to facilitate the grant of a request for a working from home arrangement:
(a) the working of ordinary hours continuously under clause 13.6(a);
(b) the working of ordinary hours at the discretion of the employer in accordance with this award under clause 13.6(b);
(c) the time for taking rest breaks under clause 15.2;
(d) the time for taking meal breaks under clause 15.3.
5A.5 An individual employee and an employer may enter into a facilitative agreement in accordance with the following terms of this award as part of a working from home arrangement:
(a) alteration of the spread of ordinary hours under clauses 13.4(c) or 25.2(c);
(b) making up time taken off during working hours under clauses 13.8 or 26.5;
(c) changes to times at which the employee will start and finish a shift under clause 26.4(b);
(d) time off instead of payment for overtime under clauses 23 or 29.
5A.6 An agreement about a working from home arrangement made as a result of a request under clause 5A.3 must be in writing and must identify:
(a) the day(s) of the week, or the number, proportion or pattern of days, on which it is agreed the employee may work from home;
(b) the location where work is to be performed when working from home;
(c) any modification to the application of award terms in accordance with clause 5A.4;
(d) any facilitative agreement in accordance with clause 5A.5;
(e) the start date of the arrangement; and
(f) how the arrangement may be varied by agreement or terminated by either party.
5A.7 An agreement about a working from home arrangement must be one that is made by the individual employee and the employer without coercion or duress.
5A.8 The employer must keep the agreement as a time and wages record and give a copy to the employee.
5A.9 Clause 5A does not limit the operation of clause 5 (Individual flexibility arrangements).
NOTE 1: Under this clause, an employee may request and an employer may agree to a new working from home arrangement or the formalisation of an existing working from home arrangement.
NOTE 2: An eligible employee may also request a flexible working arrangement under section 65 of the Act.
NOTE 3: Disputes about requests for working from home arrangements under this clause may be dealt with under clause 40 (Dispute resolution).
Get the policies, templates and lawyer-backed advice to formalise your arrangements properly. HR Command tracks award changes so you do not have to.
Book a demoClerks Award working from home FAQs
Does the Clerks Award now give employees a right to work from home?
No. Clause 5A gives employees covered by the Clerks – Private Sector Award 2020 a right to make a written request to work from home, not a right to work from home. The Full Bench specifically declined to impose a general entitlement. An employer can still refuse, but should handle the refusal carefully because a request is likely to be a workplace right.
When does the Clerks Award working from home clause start?
Clause 5A operates from 26 October 2026. The Fair Work Commission issued its final decision, [2026] FWCFB 281, on 19 October 2026 and refused a request for a six month lead time because the clause only applies where both parties agree.
What changed between the draft and the final clause 5A?
Requests and agreements can now describe the days of the week, or a number, proportion or pattern of days, rather than only named days. Agreements must say how the arrangement can be varied by agreement, not only how it ends. A new note confirms the clause can be used to formalise existing arrangements. A typo was also fixed and some wording simplified.
Does clause 5A apply to existing working from home arrangements?
Yes. Note 1 to the final clause confirms an employee may request, and an employer may agree to, the formalisation of an existing working from home arrangement. Where an existing arrangement bends the award’s rules on continuous hours, when hours are worked or break timing, a written clause 5A agreement is how it comes into line with the award.
What must a clause 5A working from home agreement include?
It must be in writing and identify the days of the week, or the number, proportion or pattern of days, the location, any modification to award terms, any facilitative agreement, the start date, and how the arrangement may be varied by agreement or terminated by either party. It must be made without coercion or duress, kept as a time and wages record, and a copy given to the employee.
Is a working from home request a workplace right?
The Full Bench indicated that making a request under the term would be the exercise of a workplace right. 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 26 October 2026.
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.
Sources
- Fair Work Commission, Full Bench decision [2026] FWCFB 281 (19 October 2026)
- Fair Work Commission, Working from home: Clerks Award decision issued (27 August 2026), with links to [2026] FWCFB 225 and the draft determination
- Joe Murphy, Caroline Beasley and Lara Roets, Cowell Clarke Commercial Lawyers, Fair Work Commission proposes new working from home term for the Clerks Award: what employers need to know (28 August 2026)
This article is general information only and is not legal advice. HR Command works in partnership with Cowell Clarke Commercial Lawyers. For advice on your situation, HR Command clients can use the Workplace Advice Line.
