Back in August, we told you the Fair Work Commission was planning to add a working from home clause to the Clerks Award. It’s no longer a plan. The Full Bench has finalised it, and it kicks in on Monday 26 October 2026.
That’s less than a week’s notice. Employer groups asked for a six-month lead time. The Commission said no, on the basis that the clause only works if both sides agree, so it doesn’t force anything on an employer who doesn’t want to use it.
Fair enough in theory. In practice, if you’ve got admin, reception, payroll or office staff working from home, this clause is the tool you’ve been missing. Here’s what it does, where the traps are, and what to sort out first.
What Has the Fair Work Commission Actually Decided?
In Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 281 (19 October 2026), the Full Bench confirmed a new clause 5A in the Clerks Award, headed “Requests for working from home arrangements”.
This finalises the draft published with [2026] FWCFB 225 on 27 August 2026, after almost two years of consultation in the Working from home – Clerks Award major case (AM2024/34).
This was always a test case. When the Commission started it in 2024, it flagged that whatever it landed on could become the model for other awards. So even if you’re not covered by the Clerks Award, it’s worth paying attention.
The Clerks Award covers a huge chunk of Australia’s office workforce, roughly 1.5 million people. If you employ anyone doing clerical or admin work and they’re not on an enterprise agreement, there’s a good chance this applies to you.
Does This Give Employees a Right to Work From Home?
No. And this is the bit that will get misreported in your lunchroom.
Clause 5A gives employees a way to ask, in writing, to work from home. You can say yes, say no, or negotiate something in between. The decision stays with you, based on what the business needs.
You don’t even need a reason to refuse. Unlike flexible work requests under the Fair Work Act, there’s no requirement for reasonable business grounds. That said, we’d still give one. A short, genuine explanation goes a long way if the employee pushes back.
The unions pushed hard for much more. They wanted a presumption that requests would be approved, a short list of reasons you’d be allowed to refuse, a deadline to respond, equipment or cost reimbursement, and long notice periods to end an arrangement. The Full Bench knocked all of that back. It found no real evidence that employers were refusing working from home for arbitrary or unfair reasons.
Compare that with Victoria. The proposed Victorian laws would, if passed, give employees a right to work from home up to two days a week unless it isn’t reasonable. That’s a very different model, and it isn’t law yet.
So no, this isn’t a WFH mandate. We’d call that a sensible outcome. About time Fair Work listened to reason.
What Can You Change Under Clause 5A?
This is where it gets useful. The Clerks Award was written for people sitting at a desk in an office from 9 to 5. Working from home rarely looks like that.
Once you and an employee agree on a working from home arrangement, you can also agree to change how some of the award’s rigid rules apply to them:
- the requirement for ordinary hours to be worked continuously (clause 13.6(a))
- the employer’s discretion over when ordinary hours are worked (clause 13.6(b))
- when rest breaks and meal breaks are taken (clauses 15.2 and 15.3).
In real life, that looks like an employee splitting their day around school drop-off, or working through lunch so they can finish early for pick-up. Without an agreement, the first breaches the continuous hours rule. The second can breach the meal break rules and leave you exposed to penalty rates, potentially double time.
Don’t Forget the Flexibility Already in the Award
Clause 5A isn’t the only tool. The Clerks Award already lets you and an employee agree to:
- shift the spread of ordinary hours so they can start as early as 6am or finish as late as 8pm
- take time off during ordinary hours and make it up at another time within ordinary hours
- take time off instead of being paid overtime.
These facilitative agreements can sit inside your working from home agreement, so everything is in one place.
What clause 5A doesn’t change: allowances. Proposals to cut first aid, uniform laundry and overtime meal allowances for home-based days were rejected.
What About Overtime When Staff Work From Home?
The overtime rules haven’t changed. But the Commission made a point worth knowing.
Overtime for work outside the spread of ordinary hours only kicks in when the work is done at the employer’s direction. If an employee chooses to finish their work at 8.30pm because it suits their day, that’s not overtime.
Be careful with this one. If a manager sends work through at 6pm and expects it back that night, that starts to look a lot like a direction. Put the employee’s chosen working pattern in writing, and make sure managers aren’t quietly creating overtime you’re not paying for.
What Has to Be in Writing?
Pretty much everything. The employee’s request must be in writing and say which day or days they want to work from home, or the number, proportion or pattern of days.
If you agree, the agreement must also be in writing and cover:
- the days, or the number, proportion or pattern of days, they can work from home
- where they’ll work, which can be their home or another location they choose and you approve
- any changes to how the award applies under clause 5A
- any facilitative agreements, such as a changed spread of hours
- the start date
- how the arrangement can be varied by agreement or ended by either of you.
The agreement must be genuinely voluntary, with no pressure, coercion or duress. You must keep it as a time and wages record and give the employee a copy.
You can use clause 5A to set up a new arrangement or to formalise one that’s already running.
That last point matters. If the Fair Work Ombudsman comes knocking, a handshake and a Teams chat won’t cut it.
Why Should You Care If Your WFH Set-Up Already Works Fine?
Because “works fine” and “compliant” aren’t the same thing.
The Commission found that a lot of existing working from home arrangements under the Clerks Award are probably operating outside the award. Think of the employee who splits their day around the school run, or skips lunch to log off early. Everyone’s happy. But on paper, that can breach the continuous hours and meal break rules, and in the worst case, leave you owing penalty rates you haven’t been paying.
Clause 5A gives you a clean way to fix that. The Bench said it didn’t want to delay giving businesses the chance to legitimise arrangements that may currently sit outside the award. That’s the real opportunity here.
Our take: this is one of the rare times the Commission has handed employers something practical. But it only protects you if you use it. Informal arrangements were already risky. From Monday, there’s no excuse for leaving them informal.
Can an Employee Take You to the Fair Work Commission Over a WFH Request?
Two things to know here.
Asking is protected. Making a working from home request is a workplace right. Saying no is fine. Treating someone differently because they asked is not. That’s adverse action, and it’s exactly the kind of general protections claim that lands small businesses in trouble.
Disputes can go to the Commission. A dispute about a request can be dealt with under the award’s dispute resolution clause, which means either of you can refer it to the Fair Work Commission. Another good reason to handle requests properly and keep a paper trail.
How Does This Fit With Flexible Work Requests Under the Fair Work Act?
Clause 5A sits alongside the existing right to request flexible working arrangements under the National Employment Standards. It doesn’t replace it.
Some employees, such as parents, carers, employees with disability and employees aged 55 or over, can already request flexible work under the Fair Work Act. Those requests come with stricter rules: a written response within 21 days, refusal only on reasonable business grounds, and a genuine attempt to reach agreement.
So if a working from home request comes from someone in one of those groups, don’t just treat it as a clause 5A request and say no. Check which process applies first. Getting this wrong is an easy way to end up in a dispute at the Commission.
What Should You Do Before 26 October?
Do This Week
- Work out which of your employees are covered by the Clerks Award, and which aren’t.
- List everyone currently working from home on any regular basis, including the informal “Fridays at home” crowd.
- Look at how their hours and breaks actually run, not how they look on the roster.
- Remind managers that knocking back a request is fine, but treating someone differently for asking isn’t.
Do in the Next 30 Days
- Put written clause 5A agreements in place for existing arrangements, covering days, location, any changes to hours and breaks, any facilitative agreements, start date and how it can end.
- Check whether managers are sending work out after hours with an expectation it’s done that night.
- Store those agreements with your time and wages records and give each employee a copy.
- Brief your managers so they know the difference between a clause 5A request and a flexible work request under the NES.
- Update your working from home policy and request form to match.
Keep an Eye On
- Other awards. The Clerks Award was the test case and clause 5A may become the model for other awards. The Commission hasn’t started any proceedings to extend it yet, but expect something similar down the track for roles where working from home is common.
- Victoria. The proposed Victorian laws would give employees a right to work from home up to two days a week unless it’s not reasonable. If they pass, Victorian employers will have a much stricter set of rules to deal with.
Need Help Getting Your WFH Arrangements Sorted?
We help business owners understand all the red tape and get compliant without killing the flexibility their team relies on. That means reviewing your current arrangements, drafting clause 5A agreements, and updating your policy so it actually matches how your business runs.
Existing clients, talk to your allocated HR Guru (account manager). Not a client yet? Get in touch with HR Gurus and we’ll help you sort it before it becomes a problem.
Frequently Asked Questions
When does the Clerks Award working from home clause start?
Clause 5A starts operating on Monday 26 October 2026. The Fair Work Commission decided not to give businesses a longer lead time.
Do employees under the Clerks Award now have a right to work from home?
No. Employees can request to work from home in writing, but the employer can agree or decline. The Commission rejected union calls for a presumption in favour of approval.
Can I refuse a working from home request under clause 5A?
Yes, and clause 5A doesn’t require a reason. However, if the employee is eligible to request flexible working under the National Employment Standards, different rules apply, including a 21-day written response and refusal only on reasonable business grounds. You also can’t take adverse action against an employee for making a request.
Does working from home outside normal hours trigger overtime?
Not if it’s the employee’s choice. Overtime for work outside the spread of ordinary hours only applies when the work is done at the employer’s direction. If a manager directs or expects the work to be done then, overtime can apply.
What happens if there’s a dispute about a working from home request?
It can be dealt with under the Clerks Award’s dispute resolution clause, which allows either party to refer the dispute to the Fair Work Commission.
Do I need to put existing working from home arrangements in writing?
If you want the protection of clause 5A, yes. Agreements need to be in writing, made without coercion, kept as a time and wages record, and a copy given to the employee.
Does clause 5A change allowances for staff working from home?
No. The Commission rejected proposals to reduce first aid, uniform laundry and overtime meal allowances for working from home days.
Will other awards get a working from home clause?
Possibly. The Clerks Award was the test case and the Commission has said clause 5A may serve as a model for other awards. No proceedings to extend it have been announced yet.
Sources
- Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 281 (19 October 2026)
- Variation on the Commission’s own initiative – Clerks – Private Sector Award 2020 [2026] FWCFB 225 (27 August 2026)
- Fair Work Commission: Working from home – Clerks Award decision issued
This article is general information only and isn’t legal advice. Get advice for your specific situation.