WFH Provisions in Clerks Award to Commence Next Week

Key takeaway for employers

• From 26 October 2026, employees covered by the Clerks Award will have the right to formally request working from home arrangements.
• Written working from home arrangements allow for greater flexibility without compromising on Award compliance.
• Employers should check how the new WFH clause would apply to any existing working from home arrangements.

New Clerks Award working from home provisions

Employees covered by the Clerks – Private Sector Award 2020 (Clerks Award) will have the right to make a request for a working from home arrangement following the decisions of the Fair Work Commission (FWC) Full Bench dated 27 August 2026 and 19 October 2026.

Australian Business Lawyers & Advisors represented Business NSW (BNSW) and Australian Business Industrial (ABI) in a claim to vary provisions of the Clerks Award to better facilitate common working from home arrangements.

In the same proceedings, the Australian Council of Trade Unions (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.

On 27 August 2026, a FWC Full Bench handed down its draft 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; and 
3. published a draft determination setting out the proposed new Clause 5A ‘Requests for working from home arrangements’ to be inserted into the Clerks Award.

On 19 October 2026, following submissions by relevant parties on the proposed new Clause 5A, the FWC determined to amend it and provided the final wording of the clause.

In its decision, the Full Bench took into account submissions that the agreed working from home arrangements do not need to be necessarily prescriptive as to the days of the week that are worked from home and that the arrangements may operate more flexibly than this.

Consequently, the amended Clause 5A.3 now specifies that an employee’s request for a working from home arrangement must be made in writing and specify the “days of the week, or the number, proportion or pattern of days” that the employee proposes to work from home. 

Other changes include amendments to Clause 5A.6 to ensure that the provision allows for the variation of agreed arrangements, and the inclusion of an additional note at the end of clause 5A to clarify how the new clause would apply to existing working from home arrangements. 

The decision stipulates that the new clause 5A will commence operation from 26 October 2026. 

What provisions of the Award will change next week?

Under the new WFH provisions, 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.

Importance of using the new working from home agreements in future

As detailed in our previous article, 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, employers will be better able to ensure that the arrangements taking place when employees are working from home remain Award-compliant.

Industries other than the Clerks Award 

The decision in the Clerks Award proceedings effectively served as a pilot case for assessing whether existing Award provisions are compatible with working from home arrangements and whether amendments were necessary.

The resulting framework may provide a model for future changes to other Awards covering workforces where work from home is common.

Need support?

Should you have any questions about how this works for your business, please get in touch with one of the team to discuss at info@ablawyers.com.au.