New WFH Award Provisions Proposed by FWC

Earlier this year, ABLA represented Business NSW (BNSW) and Australian Business Industrial (ABI) in a claim to vary provisions of the Clerks - Private Sector Award 2020 to better facilitate common working from home arrangements.

In the same proceedings, the ACTU and Australian Services Union (ASU) pursued claims to introduce a new right to work from home in the Clerks Award, which could only be refused on certain limited grounds.

A Fair Work Commission (FWC) Full Bench has today handed down its decision. The FWC:

1. rejected the ACTU/ASU claim for a right to work from home
2. accepted the argument made on behalf of employers that some Award provisions should be able to be changed when employees work from home. This ensures that employers remain Award-compliant when working from home arrangements depart from some of the Award requirements. However, not all of the employer-proposed changes were accepted as necessary by the Bench.

The Full Bench has circulated a Draft Determination it proposes to make to give effect to its Decision.

What provisions of the Award are proposed to change?

The Draft Determination proposes that employers can make agreements with employees to work from home that would enable the parties to:

• change the timing of mandatory Award rest breaks;
• change the timing of mandatory Award meal breaks; and
• permit ordinary hours to be worked non-continuously.

The FWC also confirmed that, when working from home, the parties can utilise existing Award provisions to:

• vary the spread of ordinary hours to start as early as 6:00am or instead to conclude as late as 8:00pm; and
• agree to take a period of ordinary hours as time off and make that time up later on during the spread of ordinary hours.

The agreements made to facilitate the above arrangements must be in writing and kept as a time and wages record.

Proposed changes that were not accepted

The FWC did not accept the ABI and BNSW claim to allow ordinary hours to be worked until 10:00pm (at the employee's volition) where an employee had taken time off earlier in the day.

The FWC also did not accept the ABI and BNSW claim that laundry, first aid and meal allowances should not apply to employees working from home (despite their traditional rationale not being applicable to working from home arrangements).

Importance of using the new working from home agreements in future

The FWC accepted that employers and employees who currently implement working from home arrangements at their own initiative risk breaching the Award without a working from home agreement being in place:

“…what the evidence demonstrates is that many arrangements which have already been implemented are likely to be inconsistent and non-compliant with particular provisions of the Clerks Award.

The most obvious examples of this concern the requirement in clause 13.6(a) of the Clerks Award for ordinary hours to be worked continuously, the employer’s discretion over the working of ordinary hours in clause 13.6(b), and the requirements concerning the time for taking and the length of rest and meal breaks in clauses 15.2 and 15.3. …

If, for example, an employee prefers to work from home so that they can drop off children at and pick them up from school, it may suit the employee to interrupt the continuity of their work, and take breaks for which the Clerks Award does not provide, in order to undertake this task. Conversely, it may also suit an employee to work through breaks for which the Clerks Award provides in order to finish earlier and engage in recreational activities such as sport or exercise. These matters make it likely that there is widespread non-compliance with clauses 13.6(a), 15.2 and 15.3 of the Clerks Award when employees are working from home."

By entering into a working from home agreement under the new Determination provisions (once formally made by the FWC), employers will be better able to ensure that the arrangements taking place when employees are working from home remain Award-compliant.

What about other industries?

The decision in the Clerks Award was effectively a ‘pilot proceeding’ to determine the compatibility of Award provisions with working from home and whether any changes were warranted.

It is probable that the new arrangements determined as part of these proceedings could be used as a template for changes to other Awards that apply to workforces where working from home is common.

Where to from here?

The Full Bench has invited submissions on the drafting and/or technical issues by 17 September 2026. ABLA is currently reviewing the proposed clause on behalf of ABI and BNSW and expects to make further submissions before the Commission finalises the variation.

Questions?

Please feel free to contact our expert team at info@ablawyers.com.au should you wish to obtain any further advice in relation to the decision and its impact on your business.