The proposed introduction of a Clerks – Private Sector Award 2020 (Clerks Award) term allowing employees to request working from home is the latest development in the emerging work from home regulatory landscape.
In June 2026, the Victorian Labor Government introduced the Equal Opportunity Amendment (Work from Home) Bill 2026 proposing to legislate a right for certain employees to work from home for two days per week (pro-rata for part-time and casual employees).
Under the proposed legislation, an employer must allow requests to work from home, unless it is not reasonable considering matters such as the inherent requirements of the employee’s role, a significant decrease in productivity or efficiency and adverse impacts on safety.
Originally those laws were intended to commence this month, however Victorian Premier, Ben Carroll, recently announced that commencement would be delayed until 1 July 2027, following further consultation and amendments. The Bill still needs to pass parliament, which Labor says should occur before the State election in November 2026.
Late last month the Fair Work Commission (Commission) determined to vary the Clerks Award to include a provision dealing with working from home.
The decision follows the Commission’s finding in its Modern Awards Review 2023/24 Final Report that, “it is readily apparent that the provision[s] of awards which apply to industry sectors where working from home is most prevalent, such as the Clerks Award, do not necessarily match the practical arrangements by which employees work at home in actuality.”
The decision was accompanied by a draft determination, setting out the Commission’s proposed working from home term which:
- allows employees to request, and employers to agree to, an arrangement permitting the employee to work from home.
- requires the request be made in writing and specify the day(s) upon which the employee proposes to work from home.
- defines ‘working from home’ as the performance of duties by an employee at their residence or at another location chosen by the employee that is approved by the employer.
- allows the employer and the employee to agree to modify certain Award terms to facilitate working from home arrangements, such as clauses requiring ordinary hours to be worked continuously or the taking of meal breaks. However, this does not affect existing award entitlements to penalty rates or loadings, for example where an employee works overtime, public holidays or shiftwork.
- requires the agreement to be reduced to writing and be made without coercion or duress.
Importantly, this provision does not require employers to allow a request to work from home. Rather, it is intended to facilitate employers and employees making working from home arrangements and remove any existing award impediments to such arrangements.
Interested parties may file submissions concerning any drafting or other technical issues arising from the draft determination by 17 September 2026.
It would appear likely that the working from home term introduced in the Clerks Award will serve as a model term for incorporation in other modern awards and in particular those with their own clerical streams like the Social, Community, Home Care and Disability Services Industry Award 2010, Health Professionals and Support Services Award 2020, Banking, Finance and Insurance Award 2020, Electrical Power Industry Award 2020, Hospitality Industry (General) Award 2020 and the General Retail Industry Award 2020.
Practical implications
The Clerks Award term does not compel employers to accept working from home requests. However, it does create a mechanism for employees covered by the Award to make such requests where they are not otherwise eligible to make working from home requests (as part of a request for a flexible working arrangement) under the National Employment Standards (NES).
An Award-based working from home provision will also likely result in an employee accessing the Award dispute resolution procedure in circumstances where their request is declined (in whole or in part). Noting that, under the Clerks Award, arbitration of the dispute is only possible where the parties consent to it.
An Award-based working from home provision may also be used as a basis for employees to claim they were subjected to ‘adverse action’ because they exercised the ‘workplace right’ to request to work from home under the Award in contravention of the Fair Work Act general protections provisions.
Importantly, an Award-based working-from-home provision could also raise approval issues for enterprise agreements covering clerical roles. Given the Commission's approach to assessing the better off overall test, enterprise agreements could need to replicate or incorporate the Award term in order to be approved.
Next steps
Employers should review Clerks Award coverage and current working from home policies. As with flexible work requests under the NES, refusal of a working from home request is more likely to be sustainable where the employer can demonstrate operational impacts which cannot be reasonably addressed by other means.
Employers should consider formalising working from home/flexible work request policies (including any applications employees are required to make) so that relevant operational impacts, including impacts on other employees, are identified and assessed before a request is approved or declined.