Working from Home: Legal reform and the future of flexibility in Australia

Fair Work Commission Proposes WFH Clause in Clerks Award

The Fair Work Commission (FWC) has initiated hearings to develop a working-from-home (WFH) clause in the Clerks – Private Sector Award.

This initiative follows the 2023–24 Modern Award Review which heard from both employers and unions that modern awards should better accommodate modern working conditions.

When modern awards were first drafted in 2010, no party could have foreseen the transformative effect that the combination of technological advances and the pandemic would have on clerical work.   

On one side, representatives of employers such as Business NSW argue that the flexible nature of working from home is not accommodated by the current drafting of modern awards, which assume fairly rigid ‘office hours’, shift-lengths and uninterrupted work. 

This argument suggests that modern awards should be significantly less prescriptive for employees working from home, and should not include penalties and restrictions on employers who allow employees to work earlier, later or in an intermittent way that suits their personal routine.

From the union perspective, working from home is increasingly seen as an entitlement. Accordingly, unions will push for a right to work from home.

Victoria’s Bold Legislative Proposal: WFH as a Legal Right

In a landmark move, Victorian Premier Jacinta Allan has announced plans to legislate the right to work from home for at least two days a week. Under the proposed laws, if a job can be reasonably performed remotely, employees would have a legal right to do so, regardless of sector.

Premier Allan described the initiative as both a workplace reform and an economic policy, citing benefits such as:
•    Reduced commuting time and costs.
•    Increased productivity.
•    Enhanced workforce participation, particularly for women 

The proposal has sparked significant debate. With Victoria having referred its industrial relations arrangements to the Commonwealth decades ago, it is unclear as to how any new law could operate to exclude the Federal laws which otherwise apply.

The proposal has been variously described as unconstitutional and a ‘political stunt’.

Regardless, this political activity suggests increased momentum for farther reaching ‘global’ rights to work from home.

What This Means for Employers

Employers will already be well aware of increasing employee expectations around working from home entitlements.

Employers should prepare for:
•    Increased employee requests around WFH.
•    Potential changes to award conditions.
•    Legal scrutiny of remote work policies.

ABLA’s Guidance

At ABLA, we are closely monitoring these changes and advising clients on how to remain compliant while balancing operational needs. Whether you're updating contracts, reviewing award obligations, or preparing for legislative reform, our team is ready to assist.

For tailored advice on how these developments may affect your business, please contact us.