On 27 August 2026, a Full Bench of the Fair Work Commission proposed a new working from home (WFH) term for the Clerks – Private Sector Award 2020 (Award), publishing a decision[1] and an accompanying draft determination[2] to introduce a new clause 5A with submissions on the draft determination due by 17 September 2026. Once finalised, the WFH Term will then ideally inform changes to other modern awards, with or without amendments.
Why is this happening?
The Fair Work Commission’s own research found that WFH is now widespread among the Award employees, and that most requests are already approved, so it saw no need to force employers to allow WFH more broadly.[3] Its real concern was that many existing WFH arrangements don’t comply with the Award’s rules on continuous hours and break timing, which creates a compliance risk for employers and uncertainty for employees.[4]
The Proposed Term
If finalised in its current form, the draft determination would insert a new clause 5A into the Clerks Award.[5] In summary, it would:
- define “working from home” as performing duties at the employee’s residence, or at another location the employee chooses that the employer approves;
- allow an employee make a written request for a WFH arrangement specifying the proposed day(s);
- allow the employee and employer to agree to modify how four existing provisions apply, to facilitate the arrangement, being: the requirement for ordinary hours to be worked continuously, the employer’s discretion over ordinary hours, and the timing of rest and meal breaks;
- allow the employee and employer to separately draw on the Award’s existing flexibility mechanisms as part of the arrangement – altering the spread of ordinary hours, make-up time, changed shift start/finish times, and time off instead of overtime payment;
- require any resulting agreement to be in writing and to set out the agreed WFH day(s) and location, any Award terms modified, any facilitative arrangement used, the start date, and how either party can end it; and
- require the agreement to be made free of coercion or duress, and kept by the employer as a time and wages record, with a copy given to the employee.
Making a request under the proposed term would be the exercise of a workplace right, and a dispute about a request could be dealt with under the Award’s dispute resolution procedure.
What is Not Changing
The proposed term would not create a general right to work from home, and would not require employers to approve WFH requests. Employers must still pay overtime in accordance with the Award, and must keep the usual records where overtime is worked. It would also leave an employee’s existing right to disconnect untouched, and would operate alongside, not replace, the existing individual flexibility arrangements and National Employment Standards (NES) framework for eligible employees seeking flexible work.
What Employers Should Do Now
While the draft determination is not yet binding, employers with Clerks Award-covered employees should be considering whether their current WFH policies, individual arrangements, and record-keeping processes are fit for purpose. Employers should consider doing the following:
- compare your existing WFH policy and any individual arrangements against the proposed clause 5A, to see where they already align and where they don’t.
- check whether your current record-keeping practices could meet the proposed written request, written agreement, and record-keeping requirements
- consider making a submission on the draft determination if the drafting raises practical issues for your business (submissions close 17 September 2026); and
- keep an eye on the final form of clause 5A once the Full Bench has considered submissions, as well as any flow-on proposals for other modern awards.
If you are considering your organisation’s working from home arrangements, WFH policies or the processes used to document and manage flexible working arrangements, and would like assistance to ensure your approach is practical, compliant and ready to respond to any changes, please contact us.
Require further information/assistance?
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, including a review of your casual engagement arrangements or assistance responding to an employee choice notification, please contact your Consultant.
[1]Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 225 (“Decision”).
[2]Draft Determination, AM2024/34, 27 August 2026.
[3]Decision, [56]–[88].
[4]Decision, [94]–[96].
[5]Draft Determination, cl 5A; Decision, [108].
