A ‘request’ to WFH, not a ‘right’ under the new variation to the Clerks-Private Sector Award 2020

The Full Bench of the Fair Work Commission handed down its decision on 27 August 2026, to vary the Clerks-Private Sector Award 2020 (Award) to allow employees the ability to request to work from home. The proposed facilitative clause 5A, sits alongside the existing individual flexible arrangement provision in the Award.

The proposed term is intended to facilitate workable arrangements for working from hom and removes existing award impediments to such arrangements (such as when breaks can be taken or arrangements of how ordinary hours are worked). This proposed term allows an employee to request, and an employer to agree, or disagree, to a work from home arrangement. If agreed, the employer and employee may modify the application of specific provisions of the Award to facilitate the arrangement as outlined in the term:

5A. Requests for working from home arrangements

• 5A.1 An individual employee may request, and an employer may agree to, an arrangement permitting the employee to work from home.

• 5A.2 Working from home means the performance of duties by an employee at their residence or at another location chosen by the employee that is approved by the employer.

• 5A.3 A request by an individual employee for a working from home arrangement must be made in writing and must specify the day(s) upon which the employee proposes that they work from home.

• 5A.4 Despite anything else in this award, an individual employee and an employer may agree to modify the application of the following terms of this award to facilitate the grant of a request for a working for home arrangement:

  (a) the working of ordinary hours continuously under clause 13.6(a);

  (b) the working of ordinary hours at the discretion of the employer in accordance with this award under clause 13.6(b);

  (c) the time for taking rest breaks under clause 15.2;

  (d) the time for taking meal breaks under clause 15.3.

• 5A.5 An individual employee and an employer may enter into a facilitative agreement in accordance with the following terms of this award as part of a working from home arrangement:

(a) alteration of the spread of ordinary hours under clauses 13.4(c) or 25.2(c);

(b) making up time taken off during working hours under clauses 13.8 or 26.5;

(c) changes to times at which the employee will start and finish a shift under clause 26.4(b);

(d) time off instead of payment for overtime under clauses 23 or 29.

• 5A.6 An agreement about a working from home arrangement made as a result of a request under clause 5A.3 must be in writing and must identify:

(a) the day(s) on which it is agreed the employee may work from home;

(b) the location where work is to be performed when working from home;

(c) the modification to the application of any award terms in accordance with clause 5A.4;

(d) any facilitative agreement in accordance with clause 5A.5;

(e) the start date of the arrangement; and

(f) the means by which the arrangement may be terminated by either party.

• 5A.7 An agreement about a working from home arrangement must be one that is made by the individual employee and the employer without coercion or duress.

• 5A.8 The employer must keep the agreement as a time and wages record and give a copy to the employee.

• 5A.9 Clause 5A does not limit the operation of clause 5 - Individual flexibility arrangements.

NOTE 1: An eligible employee may also request a flexible working arrangement under section 65 of the Act.

NOTE 2: Disputes about requests for working from home arrangements under this clause may be dealt with under clause 40—Dispute resolution.

The proposed term does not create an obligation on employers to approve a work from home request. It largely does not alter pay other than allows the parties to agree that time off may be taken instead of payment for overtime. It sits alongside the existing right to request flexible working arrangements and the right to disconnect.

However, employers should be aware that the Fair Work Commission expressly stated this right to request WFH will be a workplace right under section 340 of the Fair Work Act 2009 (Cth). This means, it is covered by the general protections which is uncapped compensation. Employers must be cautious and ensure they do not take adverse action against an employee because they exercised their workplace right to request to WFH.

Submissions in relation to drafting or technical issues with the proposed term are open until 17 September 2026.

What should employers do now?

Whilst we wait to learn if there are any wording changes to the proposed term, employers covered by the Clerks Award should ensure:

1. there is a work from home policy in place;

2. there is a work from home agreement between each individual employee which documents the individual arrangement;

3. there is a work health and safety policy in place for work from home arrangements;

4. they are prepared to consider any work from home requests that may soon arise under the new Clerks Award provision.

Employers in other industries or sectors should take note, as the Commission has indicated this proposed term may serve as a model term for incorporation into other awards, with or without adaption.

If your business is unsure of their obligations or requires the above policies or work from home agreement, please reach out for advice specific to your business.

This article is general information and is not legal advice and is not specific to your situation. Please contact Jade on 07 4599 3009 or via email jade@jeslegal.com.au if you would like legal advice for your business.