Work from Home clause to be added to Clerks – Private Sector Award 2020

On 27 August 2026, the Fair Work Commission (Commission) released its draft determination to vary the Clerks – Private Sector Award 2020 (Clerks Award) to allow for employees to request work from home (WFH) arrangements from their employer.[1]

In our previous legal alert from August 2024,[2] we reported on the Commission’s task which was at that time to seek submissions from interested parties on a list of issues for consideration in drafting the clause.

The Commission has now released its draft determination which, subject to any necessary amendments, will apply at this stage to the Clerks Award.  It is likely that the Commission would look to include similar clauses in other awards that may lend themselves to WFH arrangements in future.

Proposed provisions

The draft clause[3] provides that individual employees may request, and an employer may agree, to an arrangement permitting the employee to WFH. ‘Home’ is not limited to an employee’s residence and may include another location remote from the workplace that is chosen by the employee and approved by the employer.

An agreement made must be in writing and must be kept by the employer as a time and wages record. The written request must specify:

1. the day(s) on which it is agreed the employee may WFH;
2. the location where work is to be performed when WFH;
3. the modification to the application of any other award terms;
4. any facilitative agreement in accordance with clause 5A.5;
5. the start date of the arrangement; and
6. the means by which the arrangement may be terminated by either party.

Implications

Requesting a WFH arrangement, once finalized, will provide employees with an additional ‘workplace right’ protected by the ‘general protections’ provisions in the Fair Work Act 2009 (Cth) (Act). This means that an employer cannot take ‘adverse action’ against an employee because they make a request or propose to make a request, for example, by terminating employment, discriminating against them or altering conditions of employment to the employee’s prejudice.  The right to make a WFH request would be in addition to, and would not otherwise alter, any other rights an employee may have to request flexible working arrangements available to them under the National Employment Standards.

Interaction with other Award clauses

Where a WFH agreement is made, it may modify how other clauses in the Clerks Award apply to an employee working from home. Modifications can be made to the following Award provisions:

1. the requirement to otherwise work ordinary hours continuously under clause 13.6(a);
2. the working of ordinary hours at the discretion of the employer in accordance with this award under clause 13.6(b);
3. the time for taking rest breaks under clause 15.2;
4. the time for taking meal breaks under clause 15.3.

Further, an employee and employer may enter into a facilitative agreement in relation to the WFH arrangement, which addresses the following matters:

1. alteration of the spread of ordinary hours under clauses 13.4(c) or 25.2(c) of the Award;
2. making up time taken off during working hours under clauses 13.8 or 26.5;
3. changes to times at which the employee will start and finish a shift under clause 26.4(b);
4. time off instead of payment for overtime under clauses 23 or 29.

Managing WFH disputes

Disputes about a WFH request are proposed to be managed under the dispute resolutions provisions in the Clerks Award.  Parties must first attempt to resolve the issue at the workplace level before referring it to the Commission. Once referred, the Commission may seek to resolve the dispute as appropriate and with any method of dispute resolution permitted to them under the Act, including mediation, conciliation and/or arbitration.

Takeaways

The Commission is currently seeking submissions on the draft determination, including on potential amendments to the clause. Employers engaged in enterprise agreement negotiations now or in future should consider how this clause applies to them and whether it is a matter that can or should be modified or enhanced in any agreement bargain.

The right to request a WFH arrangement may become more widespread across modern awards, and at the very least feature as a matter which employees and Unions will want to bargain about in enterprise agreement negotiations.  The impact and ramifications of these arrangements, and how requests will be lawfully managed so as not to offend workplace rights, is a matter which employers should contemplate in procedures and processes.

EMA Legal will keep this matter under review and provide updates to employers on any new developments.

[1] See the full draft determination here

[2] See Working from home – consider the impact

[3] Clause 5A.1