On 27 August 2026 the Fair Work Commission (Commission) released a draft determination proposing a new working from home (WFH) term for the Clerks - Private Sector Award 2020 (Clerks Award).
The Commission is intending for this decision to be the first foundational step in developing a model WFH term for clerical employees (Model WFH Term). Once finalised, Model WFH Term will then ideally inform changes to other modern awards, with or without amendments.
By contrast, the FWC has accepted that some provisions of the Clerks Award should be amended (as we proposed) to facilitate working from home, including provisions regarding working hours continuously, timing of meal and rest breaks and changes to start and finish times (which is currently available by agreement).
To vary the award clauses, a separate agreement needs to be made between the employer and employees.
The One Minute Briefing
The Commission’s Full Bench has prepared a Draft WFH Term aimed at addressing “a practical mismatch between contemporary WFH arrangements and existing Clerks Award provisions regulating ordinary hours and breaks”.
The following broad conclusions that can be taken from the Commission’s Full Bench decision and Draft WFH Term:
employees will not obtain an absolute right to work from home;
the legal obligations on employers effectively remain the same as they were prior to the decision;
the available evidence did not justify introducing a general right to work from home or requiring employers to approve WFH requests more broadly; and
while the legal obligations around WFH are not changing some practical changes are to be made such as any modern award that adopts the Draft WFH Term will specify that:
employees will have an express right to make a request for work from home;
certain modern award provisions may be modified by agreement; and
any agreement must be documented and retained as a time and wages record.
Why is the Commission reviewing WFH arrangements under the Clerks Award?
The Commission selected the Clerks Award because it covers clerical and administrative work that is often considered capable of being performed remotely.
The Full Bench found that WFH is now widespread in the sector, and that most WFH requests are approved, at least in part. It found no evidence of a significant pattern of arbitrary, capricious or discriminatory refusals. Accordingly, the Full Bench did not consider there was a basis for a major regulatory intervention that would compel employers to allow WFH more broadly. Instead, the Commission focused on the mismatch between informal WFH practices and award provisions developed for traditional office work.
Flexible arrangements may involve employees taking breaks at different times, interrupting their day for caring responsibilities, or having greater autonomy over when ordinary hours are worked, which the Full Bench considered to be inconsistent with the Clerks Award’s existing requirements about continuous work, ordinary hours and breaks.
What is the Commission proposing?
If finalised in its current form, the proposed term would:
permit written employee requests for WFH arrangements;
allow written WFH agreements covering approved WFH days and limited flexibility regarding ordinary hours and break times;
enable the parties to use existing award flexibility mechanisms, including make-up time, agreed changes to shift start and finish times, altered spreads of ordinary hours, and time off instead of overtime payment;
require the agreement to identify the WFH days and approved location, any agreed award modifications, its commencement date and how either party may end the arrangement; and
require the arrangement to be made without coercion or duress, provided to the employee, and retained as a time and wages record.
The proposed term would operate alongside existing individual flexibility arrangements and the National Employment Standards (NES) framework for eligible employees seeking flexible work. It would not create a general right to work from home or displace existing award entitlements, including overtime and penalty-rate entitlements.
The Full Bench also indicated that making a request under the proposed term would be the exercise of a workplace right. A dispute concerning a request could be dealt with under the Clerks Award dispute-resolution procedure.
What will not change?
The proposed term does not create a general right for employees to work from home or require employers to approve WFH requests.
Existing overtime obligations will also continue to apply. The Commission confirmed that the obligation to pay overtime under the Clerks Award will not be altered by the WFH term, and employers will continue to have relevant record-keeping obligations where overtime is worked at their express or implied direction.
The proposed term would also not affect an employee's existing right to disconnect, and it would operate alongside the Clerks Award's existing individual flexibility arrangement provisions and the NES flexible working arrangements regime.
What should employers do now?
The draft determination does not yet create any binding award obligations. Employers should monitor the outcome of the proceeding and await the final determination before changing existing arrangements in reliance on proposed clause 5A.
If the term is finalised in substantially its current form, employers with Clerks Award covered employees may need to consider whether existing WFH policies and processes support written individual arrangements, particularly where employees work flexible hours or take breaks at non-standard times. Employers may also need to ensure that any agreed award modifications are properly documented and retained.
The final outcome may also have relevance beyond the Clerks Award because the Commission has identified the term as a possible model for other modern awards.
Submissions
Interested parties may make submissions on drafting and technical issues arising from the draft determination by 5:00 pm (AEST) on 17 September 2026. The Full Bench has confined this phase of the proceeding to technical matters and is not seeking further submissions on whether the Clerks Award should include a WFH term.
If your organisation is reviewing working from home arrangements, WFH policies or the processes used to document and manage flexible working arrangements, contact Joe Murphy or Caroline Beasley from our Employment team to help ensure your approach is practical, compliant and ready to respond to any changes arising from the Fair Work Commission’s final determination.
Joe Murphy and Caroline Beasley wish to thank Lara Roets for her contribution to this insight.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.