Fair Work Commission proposes a new working-from-home term for the Clerks—Private Sector Award 2020

The Full Bench has recognised working from home as an established feature of clerical and administrative employment, while rejecting a union proposal that would have imposed a presumption in favour of approving requests.

On 27 August 2026, a Full Bench of the Fair Work Commission handed down its decision in Variation on the Commission’s own initiative—Clerks—Private Sector Award 2020 [2026] FWCFB 225. The Commission decided that the Clerks—Private Sector Award 2020 should be varied to include a new working-from-home term and published a draft determination for comment.

The decision is significant in scale. It notes that, as at February 2020, the broader occupation of ‘Clerical and Administrative Worker’ included around 1.56 million employees. That figure describes the occupational group and should not be read as a finding that every one of those employees is covered by the Clerks Award.

The key takeaways

• Working from home is now entrenched. The Commission found that working-from-home arrangements are widespread in clerical and administrative employment.
• There is still no general entitlement to work from home. The ACTU and ASU proposal for a broader right to request, supported by a presumption in favour of approval and refusal only on reasonable business grounds, was rejected.
• Employees will have a simple protected mechanism to ask. Under the proposed term, an employee may make a written request and an employer may agree. The employer is not compelled to approve it.
• Making the request will be a workplace right. The Commission expressly stated that a request under the proposed term will be protected by the general protections provisions of the Fair Work Act 2009 (Cth).
• Many current arrangements may already be non-compliant. Informal practices involving split working periods, employee-selected hours or altered breaks may conflict with the current Award.
• Agreements will need to be recorded properly. The proposed term requires a written agreement identifying the days, location, relevant Award modifications, commencement date and how the arrangement may be ended.
• Penalty rates and overtime protections remain. The Commission rejected proposals to materially widen the spread of ordinary hours and did not disturb existing entitlements to overtime, penalty rates or allowances.
• The wording is not yet final. Submissions on drafting and technical issues are due by 5:00 pm AEST on 17 September 2026.

What happened

The Commission commenced the proceeding on its own initiative in August 2024 following the Modern Awards Review 2023–24. The purpose was to examine whether the Clerks Award remained fit for purpose in circumstances where clerical and administrative work is now commonly performed from home.

The ACTU proposed a new right for all employees covered by the Award to request working from home. Its model would have required an employer to respond in writing within 14 days, created a presumption in favour of approving the request and allowed refusal only after consultation, a genuine attempt to reach agreement and the identification of reasonable business grounds. The ASU supported that proposal.

Employer organisations supported a more facilitative model. Their proposals were directed to removing practical conflicts between working-from-home arrangements and Award provisions dealing with hours, breaks, allowances and minimum engagements.

Working from home is widespread

The evidence demonstrated that working from home is no longer exceptional:

• 5 per cent of surveyed employees reported being able to work from home at some stage, with 52.3 per cent currently doing so;
• 8 per cent of surveyed employers said all clerical employees had access to working from home, while another 32.0 per cent said at least half had access;
• 2 per cent of employees who had requested to work from home had their request approved in full, with another 29.8 per cent approved in part;
• only 6.1 per cent of employee requests were wholly declined; and
• 0 per cent of employers and 85.7 per cent of employees did not consider Award changes necessary to make working from home easier to access.

The Commission concluded that working-from-home arrangements were sufficiently widespread to be considered an ‘entrenched feature’ of employment in the clerical and administrative sector.

Why was the broader union claim rejected?

The Commission was not satisfied that the evidence justified a major regulatory intervention compelling employers to allow working from home in a wider range of circumstances.

Most requests were already being approved in full or in part. The evidence also did not establish that employers were, to any significant degree, refusing requests on arbitrary, capricious or discriminatory grounds. Where requests were refused, the reasons given were at least ostensibly connected with legitimate business interests.

The Commission also rejected the argument that the 17.8 per cent of surveyed employees who wanted to work from home but did not currently do so justified a presumption in favour of approval. Some clerical roles require in-person contact, workplace facilities or coordination with other employees and cannot practicably be performed from home.

Importantly, the Commission doubted that it would be a proper use of modern award powers to recreate or expand the National Employment Standards flexible work regime through an Award term. Eligible employees will continue to have the separate right to request flexible working arrangements under section 65 of the Fair Work Act.

A request, but not a right to approval

Although the Full Bench rejected the unions’ enhanced model, it accepted that the Award should contain a visible and simple mechanism for employees to request working from home.

Under the proposed clause 5A, an individual employee may request, and an employer may agree to, a working-from-home arrangement. The request must be made in writing and identify the proposed working-from-home days. Work may be performed at the employee’s residence or another location selected by the employee and approved by the employer.

The distinction matters. The proposed term gives every Award-covered employee a mechanism to ask, but it does not impose a presumption of approval, a fixed response period or a requirement that refusal be supported by reasonable business grounds. Those additional requirements may still apply where an eligible employee makes a separate request under section 65.

The request will be a workplace right

The proposed term is not without legal consequences. The Commission expressly stated that making a request under clause 5A will constitute a workplace right for the purposes of sections 340 and 341 of the Fair Work Act.

An employer may still decline the request. However, it must not take adverse action against an employee because the employee made, or proposed to make, the request. Disputes about a request may also be dealt with under the dispute resolution procedure in clause 40 of the Award.

Many existing arrangements may already breach the Award

The most practically important part of the decision may be the Commission’s finding that many existing working-from-home arrangements are likely to be inconsistent with the Clerks Award.

The current Award requires ordinary hours to be worked continuously, subject to prescribed meal and rest breaks. It also places the timing of ordinary hours at the employer’s discretion and regulates when breaks must be taken.

Those requirements often do not reflect what occurs when employees work from home. An employee may interrupt the day for school drop-off or pick-up, take a longer break to manage caring responsibilities, work through a prescribed break to finish earlier, or choose when to perform their ordinary hours.

The Commission considered that these practices made widespread non-compliance with the Award likely. It said that widespread, consensual and mutually beneficial arrangements operating inconsistently with Award provisions tended to bring the modern award system into disrepute.

What can be changed under the proposed term?

If an employer agrees to the request, the proposed clause will allow the parties to modify the application of Award provisions concerning:

• the requirement to work ordinary hours continuously;
• the employer’s discretion over when ordinary hours are worked;
• the timing of rest breaks; and
• the timing of meal breaks.

The arrangement may also incorporate existing Award mechanisms concerning an agreed alteration to the spread of ordinary hours, making up time taken off during working hours, changes to shift start and finish times and time off instead of payment for overtime.

The agreement must be in writing and record the agreed days and location, any modifications to Award terms, the commencement date and the means by which either party may end the arrangement. It must be made without coercion or duress. The employer must keep it as a time and wages record and provide a copy to the employee.

What did the Commission decline to change?

The Full Bench did not accept employer proposals to extend the ordinary spread of hours to 10:00 pm for employees working from home. It considered the Award’s existing ability to move the spread by one hour—allowing a 6:00 am start or an 8:00 pm finish on weekdays—was likely to accommodate most cases.

The Commission also considered that materially widening the spread could be prohibited by section 135A of the Fair Work Act because it would effectively remove an existing overtime entitlement. The fact that an employee agreed to the change would not necessarily avoid that prohibition.

Proposals to disapply first aid, uniform laundry and overtime meal allowances when employees work from home were also rejected. The decision does not disturb existing overtime, penalty rate, allowance or right-to-disconnect protections.

What this means for employers

The proposed clause has not yet commenced. Employers should not treat the draft determination as operative until the Commission settles the final wording and specifies its commencement date.

However, employers covered by the Clerks Award should now:

• identify which employees are covered by the Clerks Award;
• audit both formal policies and the way working-from-home arrangements operate in practice;
• check whether employees split their working day, choose their own hours or alter prescribed breaks;
• prepare a written request and agreement process that can be implemented once the final variation commences;
• train managers that a request under the proposed clause will be a workplace right, even though there is no entitlement to approval;
• continue to apply the separate section 65 process, including its consultation, timing and reasonable business grounds requirements, where an employee is eligible under the National Employment Standards; and
• maintain reliable time records and clear protocols about when overtime is authorised or required.

The decision does not make working from home an entitlement. It does, however, recognise that remote work is now part of the ordinary structure of clerical employment and that Award compliance must catch up with workplace reality.

Next steps

The Commission has invited submissions about drafting and technical issues by 5:00 pm AEST on Thursday, 17 September 2026. The final determination will specify when the new term commences and when it takes effect for individual employees.

If you are reviewing working-from-home arrangements under the Clerks Award or responding to a flexible work request, contact Sini Popovic, Senior Associate, Fariza Ali, Solicitor, or Arkja Singh, Solicitor.

This information is general in nature and does not constitute legal advice.