Clerks Award WFH Decision - If It Ain’t Broke

On 27 August 2026, the Full Bench published its decision in the Working from home – Clerks – Private Sector Award 2020 major case, including a draft work-from-home clause (WFH Clause). Following extensive research undertaken by the Commission and hearing submissions from unions and employer groups, the Full Bench has decided to adopt a ‘facilitative clause’. 

Employers shouldn’t be too concerned – the WFH Clause doesn’t substantially change the status quo on WFH arrangements. For the most part, the underlying message seems to be “If it ain’t broke, don’t fix it”. Consequently, what is perhaps more telling is what the Full Bench declined to include in the WFH Term.

The WFH Clause provides for a mechanism for an employee to request, and their employer to agree to, a mutually suitable working from home arrangement (WFH arrangement).

The WFH Clause allows the employer and employee to:

1. agree to modify the application of current award requirements to facilitate WFH arrangements i.e. requirements relating to the continuous working of ordinary hours, the employer's control over when ordinary working hours are to be performed, and the taking of rest and meal breaks.

2. enter a facilitative agreement in accordance with pre-existing flexibility mechanisms in the Clerks Award to facilitate WFH request such as widening the spread of ordinary hours, making up time taken off during working hours, changing shift start and finish times and taking off time in lieu of overtime.

No ‘right to request’

The ACTU proposed a broad award-based right to request working from home. The proposal largely mirrored the flexible working arrangements provisions in s 65 of the Fair Work Act 2009 (Cth) (FW Act), but would have:

1. required employers to respond within 14 days rather than 21 days;

2. applied to all employees rather than only those with specified personal circumstances (pregnancy, parental and childcare responsibilities, other caring responsibilities, disability, being over 55 years old, or family and domestic violence); and

3. created a presumption in favour of approving request

The ACTU and ASU submitted that a ‘right to request’ was necessary because employees have been largely unsuccessful and prevented from accessing flexible working arrangements. The Full Bench said the submission was misplaced. Firstly, only 16 out of 24 total matters which have proceeded full merits arbitration by the Commission pursuant to s.65C of the FW Act concerned working from home requests. The applicant has been successful in five cases. More importantly, in 14 of those 16 matters, the applicant was already working from home to some degree when they made their application. The Full Bench also said that looking only at matters that proceeded to arbitration involves a very significant sample bias. It noted that most flexible work disputes brought to the Commission resolve by agreement through conciliation, and the most likely inference from the available evidence is that most flexible work requests are accepted wholly or partly by employers in clerical and administrative.

The ACTU and ASU also submitted that the NES entitlement should be extended to all employees via an award term to allow employees to balance work and care, obtain the benefits of working from home and remove the ‘flexibility stigma’ of working from home. The Full Bench doubted that an attempt to effectively rewrite NES entitlements to overcome perceived legislative shortcomings constituted a proper exercise of their modern award powers. Moreover, the Full Bench said that in any event, the evidence didn’t establish that persons who are not able to avail of the NES entitlement are being denied access to working from home.

Similarly, the Full Bench declined to introduce a presumption in favour of working from home requests, noting that the unstated premise is that every employee who wants to work from home should have the right to do so and such an approach fails to account for practical realities like operational requirements, including the need for in-person interaction and equipment limitations.

Impediments in the Award?

The Full Bench did not identify any provisions of the Clerks Award that prevent or discourage working from home arrangements. However, it recognised that some existing WFH arrangements may not strictly comply with the Award. The WFH Clause seeks to address this by allowing parties to modify certain award requirements and access existing flexibility provisions to facilitate remote working arrangements.

One of proposals by the employers’ groups was to significantly widen the spread of ordinary hours (7.00am-7.00pm, Monday-Friday) for employees working from home. Otherwise, the employer groups submitted, employers would ‘unwittingly’ incur overtime liabilities.

The Full Bench declined the proposal saying that it was likely contrary to the FW Act to allow a variation of an award to effectively abolish employees’ entitlement to overtime. In doing so, the Full Bench observed that:

• there was insufficient evidence about the extent to which employees work outside ordinary hours;

• the Clerks Award already contains flexibility mechanisms permitting earlier start times, later finish times, and time off in lieu arrangements; and

• overtime is generally only payable where overtime hours are worked at the employer's direction or because of the employer's operational requirements, rather than for an employee's personal convenience.

What does this mean for employers?

In effect, the WFH Clause is unlikely to substantially change the status quo with regard to WFH arrangements. Employers should note that a request made under the WFH Clause:

• will constitute a ‘workplace right’ under s.341(1)(a) of the FW Act which is protected by s.340 of the Act (same as a request made under s.65 of the FW Act); and

• any dispute arising from such a request will be subject to the dispute resolution procedure in clause 40 of the Clerks Award (which includes referring an unresolved dispute to the Commission).

Overall, the Full Bench’s decision affirms that WFH arrangements are here to stay, and in large part, the current system works. The Full Bench declined to (and said it couldn’t) accept aspects of the unions’ and employer groups’ proposals advocating for more substantive changes to the Clerk Award. If anything, the WFH Clause formalises the current status quo: employees can always ask, but employers can refuse.