No place like home: clerks award to include WFH term

On 27 August 2026, a Full Bench of the Fair Work Commission decided that the Clerks - Private Sector Award 2020 (Clerks Award) will be varied to include a new working from home term (WFH Term).

In doing so, the Full Bench found that there was no justification to compel employers to permit WFH arrangements in most circumstances but acknowledged that certain provisions in the Clerks Award may be impeding compliant arrangements from being made in the context of modern working arrangements.

Though modest, the decision signals a further shift towards express accommodations for employees to formalise working from home arrangements.

Why the Clerks Award?

In August 2024, the Fair Work Commission, on its own initiative, commenced the proceedings following the Modern Awards Review 2023-24 (Review).

The Review identified the Clerks Award due to the prevalence of remote and hybrid work among clerical and administrative employees and noted that its provisions "do not necessarily match the practical arrangements by which employees work at home in actuality. This may be operating as an impediment to wider access to working at home arrangements."

The Full Bench was required to determine eight key issues, including whether a WFH term was necessary to achieve the modern awards objective, how "working from home" should be defined, whether the term should include a right to request or be facilitative only, what modifications should be made to existing Clerks Award provisions (including hours of work, breaks and allowances), how overtime obligations would interact with a WFH term, and which employees should be covered.

Evidence before the Commission

The Full Bench was informed by a survey of employees and employers conducted by Swinburne University of Technology, which found that working from home is already widespread under the Clerks Award, that most employee requests are approved, and that a significant majority of both employers and employees did not consider significant changes were necessary.

Employer representatives submitted that the Clerks Award contains provisions that do not reflect the practical realities of working from home, creating a risk of widespread inadvertent non-compliance, and proposed facilitative variations to address those compliance risks, including broadening the spread of ordinary hours. Employee representatives sought a more interventionist approach, proposing a right to request working from home with a presumption of approval, enforceable grounds for refusal, and guarantees of equal conditions and pay, citing unmet employee demand and gender equality concerns.

Light touch amendments are necessary to ensure compliance

Ultimately, the Full Bench concluded that, in its view, "major regulatory intervention…compelling employers to allow employees to work from home in a wider range of circumstances" was not necessary.

Of significance, the Full Bench rejected proposals for a broader award-based right to work from home advocated for by employee peak bodies. It found that working from home practices are already widely accepted and in operation, such that employers are not arbitrarily refusing employees' requests. The Fair Work Commission also declined to substantially extend the spread of ordinary hours or alter existing overtime, penalty rate, and allowance provisions for employees working from home.

It did, however, conclude that "many arrangements which have already been implemented are likely to be inconsistent and non-compliant" with certain provisions in the Clerks Award. It further noted that "the existence of widespread, consensual and mutually beneficial working arrangements that are inconsistent with applicable award provisions tends to bring the modern award system into disrepute, and a measure of adaptation of award provisions to accommodate contemporary circumstances is necessary."

On this basis, the Full Bench determined it was appropriate to insert a WFH clause in the Clerks Award which "provides for a mechanism for an employee to request, and their employer to agree to, a mutually suitable working from home arrangement, and which allows the employee and employer as part of such an arrangement to agree upon departures from" certain Award requirements.

How does the new working from home term work?

For employees covered by the Clerks Award, the WFH Term provides a clearer framework for documenting, structuring, and making working from home arrangements.

Under the proposed provision, an employee may make a written request identifying days they wish to work from home.

If the employer agrees, the arrangement must be recorded in writing and may modify the operation of certain other award provisions. To facilitate working from home arrangements, the term will allow modification of the Clerks Award requirements concerning continuous performance of ordinary hours, the employer's discretion as to when ordinary hours are worked, and the times at which rest and meal breaks are taken.

When reached, a written agreement must also identify the:

• agreed working from home days and location;
• the commencement date of the arrangement;
• any agreed modifications to the operation of the award; and
• the means by which either party may terminate the agreement.

Importantly, the WFH Term makes it clear that the regime it sets up operates in tandem with the rights of an employee to request a flexible work arrangement under section 65 of the Fair Work Act 2009 (Cth) (FW Act), and that any disagreements arising out of its operation can be addressed via the Clerks Award's dispute resolution clause.

The Full Bench also made clear that the WFH Term, when in force, will amount to a workplace right, and any adverse action taken by an employer in relation to it will be covered by the general protections framework in Part 3-1 of the FW Act.

What does this mean for employers?

The new WFH Term is not yet operative. The Fair Work Commission has published a draft determination for comment and further submissions by 17 September 2026. It is likely, however, that there will be little to no substantive amendments to the WFH Term, which has been developed over several years and as a result of an informed process.

In the immediate term, employers who are covered by the Clerks Award should seek to implement written agreements with employees who have WFH arrangements in accordance with the WFH Term to ensure those arrangements enjoy its protections.

Whilst the WFH Term will only apply to those covered by the Clerks Award, the Review upon which this decision was triggered made it clear that it "may serve as a model for incorporation in other modern awards."

Award-covered employers should therefore be proactive in anticipation of a more widespread rollout of the WFH Term by taking stock of their existing policies and processes around flexible work arrangements and remote work, and how any such award term may apply to their industry.

You can read the full decision, President's statement, and draft determination here.