Fair Work Commission Introduces Proposed Working from home term for the Clerks Award

After almost two years of consultation, research and hearings, the Fair Work Commission (“the Commission“) has handed down its decision in Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 225 (“the Decision“), proposing the introduction of a dedicated working from home (“WFH“) term into the Clerks Award. The decision follows proceedings commenced by the Commission on its own initiative after the recommendations made in the Modern Awards Review 2023-24 Final Report (“the Report“).

Whilst the Commission rejected proposals for a formal “right to request” system, similar to the framework under section 65 of the Fair Work Act, citing the findings do not justify a “major regulatory intervention”, the Commission instead opted to vary the Clerks Award by adding a more balanced mechanism: employees will be able to request a WFH arrangement, but any arrangement will depend on employer agreement and must be mutually suitable.

The term is likely to become a model term for incorporation in other awards, particularly those applicable to white collar work.

Why the Clerks Award?

The Clerks Award covers a significant proportion of Australia’s clerical and administrative workforce. While many employees covered by the Award have worked remotely since the COVID-19 pandemic, the Award itself has never contained a permanent WFH provision.

The Commission considered the Clerks Award to be the most appropriate vehicle to address WFH arrangements, noting that much of the work covered is ‘white collar’ work performed primarily using digital technologies and is therefore particularly suited to remote work.

What Did the Evidence Show?

The Commission relied heavily on two research projects it had commissioned after the Report came out, including a survey of employers and employees covered by the Clerks Award.

Some of the key findings included:

• WFH arrangements are now widespread amongst employees covered by the Clerks Award.
• Employees working under the Clerks Award are predominantly female (over 70%), meaning WFH arrangements have particular significance for workers with caring responsibilities.
• More than half of employers surveyed reported they had never refused a WFH request.
• A significant number of WFH arrangements are initiated by employers rather than employees (22.3% were from ‘employer direction’ or as a condition of employment).
• Employees report substantial benefits from WFH arrangements, particularly in relation to work-life balance.

No “Right to Request” Working From Home

The Australian Council of Trade Unions (ACTU), Australian Services Union (ASU), and Community and Public Sector Union (CPSU) made submissions of similar proposals for a “right to request” framework modelled on section 65 of the Fair Work Act, which includes obligations on employers to consider requests, consult with employees, and only refuse the request on reasonable business grounds.

The Commission rejected that proposed framework.

Citing that the evidence does not demonstrate there being widespread unreasonable refusals of WFH requests, the survey results showing 66.5% of employees report being able to work from home at some stage, and 52.3% are currently doing so. The Commission therefore found the formal framework the unions proposed ‘unnecessary’ to achieve the modern awards objective, being a fair and relevant minimum safety net of terms and conditions.

The Commission did, however, find there was value in providing employees a visible, simple mechanism to request a WFH arrangement. The proposed framework was published alongside the Decision as a draft determination, which sets out the proposed term, “5A Requests for Working From Home Arrangements”, as follows:

• Employees may request a WFH arrangement in writing, specifying the proposed day(s) they work from home;
• Employers and employees may agree to a WFH arrangement;
• The arrangement may permit agreed departures from certain Clerk Award requirements relating to hours of work and breaks;
• Any agreement must be documented and identify the key terms as set out in the proposed clause 5A.6; and
• If an employee wishes to work from a location other than their home, that location must be known to and approved by the employer as being suitable for performing the work.

Practical Issues

While the Commission observed there was little evidence that supported a finding that the Clerks Award acts as an impediment to WFH arrangements, which was an issue previously identified, it did find that the evidence demonstrates that in actuality, many WFH arrangements are likely inconsistent and non-compliant with current provisions of the Clerks Award.

Particularly, continuous ordinary hours of work, employer control over when ordinary hours are worked, and timing of meal and rest breaks, which are provisions in the Clerks Award, are likely not complied with in current WFH arrangements.

Next Steps

Submissions on the draft determination and 5A term are due by 5:00pm (AEST) on 17 September 2026, after which the Commission will consider finalising the new provision.

Many businesses have adopted hybrid work practices over the past several years without formally documenting how those arrangements interact with Award requirements. The proposed new clause will likely provide an opportunity to regularise WFH arrangements to ensure that they are compliant.

Contributors

Maisie Guy, Graduate Lawyer