Clerks Award work from home clause has no test for refusing a request, after the Full Bench rejected a union right to request model

Clause 5A of the Clerks Award lets an employee ask to work from home and lets an employer agree. It does not say what happens when the employer does not agree.

The clause operates from 26 October 2026. It sets no time within which an employer is to respond to a request. It does not require reasons. It states no ground on which a request may be refused. The only formal requirements on the request itself are that it be in writing and specify “the day(s) of the week, or the number, proportion or pattern of days, that the employee proposes to work from home”.

The rest of the clause governs what follows a yes. An agreed arrangement may modify the award rules on working ordinary hours continuously, the employer’s discretion over when ordinary hours are worked, and the timing of rest and meal breaks. Any agreement must be in writing, made without coercion or duress, and kept as a time and wages record.

That shape was deliberate. In its 27 August 2026 decision, [2026] FWCFB 225, the Full Bench of Justice Hatcher, President, Deputy President O’Neill and Commissioner McKinnon considered and declined a right to request term with a refusal test. Its final decision of 19 October 2026, [2026] FWCFB 281, settled the wording and the start date.

The unions wanted a deadline, reasons and a presumption of approval

The ACTU’s draft term would have required an employer to respond in writing within 14 days. It would also have created a presumption in favour of approving requests. An employer could refuse only after discussing the request, genuinely trying to reach agreement, having regard to the matters raised and the consequences of refusal, and having reasonable business grounds.

The ACTU told the Bench those response and refusal requirements largely replicated s 65A of the Fair Work Act 2009. Its list of reasonable business grounds was intended to be exhaustive rather than inclusive, the decision records, “to ensure the integrity of the scheme having regard to the lack of the right to have a disputed request arbitrated”. The ACTU also pointed out that the s 65 right to request flexible working is not available until an employee has 12 months’ continuous service.

The ASU supported the ACTU’s term. The CPSU proposed a similar one. The ASU argued that the Swinburne Report’s finding, that 17.8 per cent of employees want to work from home but are not doing so, was “sufficient reason alone” for the award to include a right to request.

Why the Bench said no

The Bench pointed to the kinds of clerical work where home-based work may not be possible. In some areas, it said, working from home “may not be practicable for a range of reasons, including that the work requires in-person contact with customers, clients or other employees (such as the role of receptionist)”, or because the facilities and equipment cannot be made available at home, or because it “cannot be accommodated having regard to working arrangements with other employees”.

Because the ACTU and ASU model would still have permitted refusal on reasonable business grounds, the Bench concluded it would be unlikely to alter that position “to any real degree”, and that as a consequence “the term would add significantly to employers’ compliance obligations without achieving any significant change to practical outcomes”.

In October the Bench summarised its August findings as not justifying “a major regulatory intervention compelling employers to allow employees to work from home in a wider range of circumstances”.

Three things the simple term does, in the Bench’s words

The Bench said there would still be benefit in a term incorporating “a simple right of an employee to make a request” to their employer for a working from home arrangement. It read the 17.8 per cent figure this way: the group “appears to consist of employees who have a desire to work from home but have never made a request to do so. This may indicate that some employees lack the confidence to make a request, or lack the confidence that it will be fairly considered.”

“First, it would establish a visible mechanism for making requests. Second, this would constitute a workplace right within the meaning of s 341(1)(a) which is protected by s 340 of the FW Act.” Full Bench, [2026] FWCFB 225

The third benefit, the Bench said, is that a dispute about a request made under the term “would be one arising about a matter under the Clerks Award, which would then be subject to the dispute resolution procedure in clause 40 of the award”. Clause 40 is the award’s dispute resolution clause.

The final clause carries three notes. Note 2 states that “An eligible employee may also request a flexible working arrangement under section 65 of the Act.” Note 3 states that “Disputes about requests for working from home arrangements under this clause may be dealt with under clause 40”. Note 1, added in October in response to a submission from the Council of Small Business Organisations Australia (COSBOA), states that an employee may request and an employer may agree to a new arrangement “or the formalisation of an existing working from home arrangement”.

No lead time, because no employer is made to agree

COSBOA asked for six months before the variation took effect. It argued that small businesses depend on payroll and workforce software providers, bookkeepers and advisers to put award changes into practice, and that providers would need time to support the recording of clause 5A agreements. The Bench refused. “Because the new clause 5A operates on a consensual basis, the variation does not impose any compliance burden on a non-consenting employer,” it said. It added that it should not delay the opportunity to agree to new arrangements “or to legitimise existing arrangements which may be operating inconsistently with current award provisions”. The variation operates from 26 October 2026.

A lighter touch or an empty one

The case that the clause is a lighter touch rests on the Bench’s own reasoning. It described the term as “facilitative and not prescriptive”, said a refusal test would add compliance obligations without changing practical outcomes, and identified a visible request mechanism, a protected workplace right and a dispute route under clause 40 as what the simple term delivers.

The case that it is an empty one rests on the unions’ submissions. The ACTU argued a right to request was key to accessibility and to clarity about the process. The ASU submitted, as the decision records it, that working from home “should arise from an award right and not just exist at the privilege of the employer”. The ACTU’s proposal for an exhaustive list of refusal grounds was framed around a request process with no right of arbitration.

Is a request clause with no refusal test a lighter touch or an empty one: has the Bench kept an employer’s discretion intact so that disputes under clause 40 will turn on process and good faith, or will the first referrals to the Commission have to supply the standard the clause does not state?

Source: Fair Work Commission

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