Proposed work-from-home clause in the Clerks—Private Sector Award 2020: What employers need to know

On 27 August 2026, the Fair Work Commission issued a draft determination to vary the Clerks—Private Sector Award 2020 (Clerks Award) by introducing a new work-from-home clause. The draft clause would operate alongside existing flexibility rights, including those under the Fair Work Act 2009 (Cth). It would not create a new right to work from home. Instead, it would provide a framework for an employer and an employee covered by the Clerks Award to enter into a formal work-from-home arrangement.

On 27 August 2026, a Full Bench of the Fair Work Commission issued a decision proposing to vary the Clerks—Private Sector Award 2020 (Clerks Award) by inserting a new clause 5A addressing work-from-home arrangements.¹ If adopted, the clause would establish a dedicated mechanism for employees covered by the Clerks Award to request a formal work-from-home arrangement.

The proposal followed observations in the Commission’s Modern Awards Review 2023–24 Final Report (Review) that existing Award provisions may not be suited to current work-from-home practices. The Review also considered evidence that work-from-home arrangements are deeply embedded in clerical work. In particular, the Data Profile used by the Commission recorded that 41.4 per cent of clerical employees regularly worked from home, compared with 31.5 per cent across other surveyed occupations, and that clerical workers were predominantly female.² The Commission found that enabling work-from-home practices has particular significance for women’s economic participation.³ Before its August decision, the Commission commissioned further research on the topic. A report from Swinburne University of Technology found that 66.5 per cent of surveyed employees covered by the Clerks Award reported that they could work from home, while only 10.4 per cent of surveyed employers did not allow work-from-home arrangements.⁴

Overall, the Commission noted that many employees may operate under informal work-from-home agreements that could technically breach Award terms, exposing employers to compliance risk. In the August decision, the Commission determined that varying the Clerks Award was necessary to achieve the modern awards objective set out in section 134(1) of the Fair Work Act, particularly to promote flexible modern work practices, women’s economic participation and social inclusion.

Proposed clause 5A, titled “Requests for working from home arrangements”, would enable an employee to request, and an employer to agree to, a work-from-home arrangement. It would also allow the parties to incorporate facilitative agreements already available under the Clerks Award, including agreements altering the default spread of ordinary hours.

Key elements of the proposed clause include the following:

• “Working from home” would mean performing duties at the employee’s residence or another approved location.
• An employer and employee could agree to modify specified Award conditions that might otherwise create compliance difficulties, including requirements relating to the continuous performance of ordinary hours and the timing of rest and meal breaks.
• A request would need to be in writing and specify the proposed work-from-home day or days. Any resulting agreement would also need to be in writing and identify the work-from-home day or days, location, agreed modifications, incorporated facilitative agreements, commencement date and termination mechanism.
• Employers would be subject to record-keeping obligations for work-from-home agreements.

Eligible employees would continue to retain the right to request flexible working arrangements under section 65 of the Fair Work Act, as outlined below.

In practical terms, the proposed clause 5A would not create a right to work from home, but a right to request a work-from-home arrangement. The proposed clause is primarily directed at modifying the application of Award terms that might otherwise create difficulties in a work-from-home arrangement, without requiring the parties to enter into an individual flexibility agreement, although the draft preserves the operation of the individual flexibility agreement provisions. An employer would generally retain discretion to accept or decline a request, unless the request is subject to separate requirements, such as those applying under section 65 of the Fair Work Act.

If confirmed, the proposed clause 5A would not operate in isolation. A right to request work-from-home arrangements under the Clerks Award would supplement the existing framework of flexibility rights that employers should already be managing.

Section 65 of the Fair Work Act already provides a mechanism for certain employees, including parents and carers, employees with disability and employees aged 55 or over, to request flexible working arrangements after 12 months’ service. Employers must respond to these requests within 21 days and may refuse them only on reasonable business grounds. A qualifying employee who has made a request under section 65 may also be able to apply to the Commission to resolve a dispute concerning the request.

State and federal anti-discrimination laws may also impose obligations relevant to employees seeking flexibility in connection with protected attributes.

Employers should also monitor developments relating to proposed work-from-home legislation in Victoria.

The Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) (Bill) was introduced in June 2026 and would, if passed, create a new statutory right for eligible employees to work from home where their duties can reasonably be performed remotely.

This entitlement is materially different from the proposed amendments to the Clerks Award and existing flexible working arrangement framework under the Fair Work Act(referred to above), which provides a right to request flexible working arrangements rather than a right to work from home.

However, the Bill’s future is uncertain. In September 2026, the Victorian Legislative Council voted to refer the Bill to a select committee for inquiry and report. As the committee is not due to report until October 2026 and only a limited number of parliamentary sitting days remain before the Victorian State election in November, the parliamentary timetable may make it difficult for the Bill to pass before the election.

The referral follows the Victorian Government's announcement that it intended to proceed with the Bill, subject to a number of amendments designed to address concerns raised by business groups and other stakeholders.

As the Bill has not been abandoned, employers should continue to monitor developments closely. The committee process is likely to further scrutinise both the practical operation of the proposed scheme and concerns that have been raised regarding its interaction with existing Commonwealth workplace laws.

The Full Bench has concluded that varying the Clerks Award to include a work-from-home term is necessary to achieve the modern awards objective and has published a draft of the proposed term. Drafting and technical matters remain open for comment, with submissions due by 5.00 pm AEST on 17 September 2026. A final determination is expected to follow, and the Commission will set its commencement date.

Employers covered by the Clerks Award should use this period to review existing arrangements, including employment contracts, policies and individual flexibility agreements. They should also brief people managers on the draft clause so they are prepared to respond to questions and requests if the changes are adopted.