From 26 October 2026, the Clerks Award will contain a new clause 5A, headed Requests for working from home arrangements. The final wording settles how employees ask, what the parties may agree to change, and where a disagreement about a request can be taken.
That last point sits in a note at the foot of the clause. Note 3 states that disputes about requests may be dealt with under clause 40, the award’s dispute resolution clause. What the clause leaves out about refusing a request, and why the Full Bench left it out, is the subject of a companion piece.
5A.3 A request by an individual employee for a working from home arrangement must be made in writing and must specify the day(s) of the week, or the number, proportion or pattern of days, that the employee proposes to work from home.
Disputes about requests for working from home arrangements under this clause may be dealt with under clause 40
The Full Bench (Justice Hatcher, President, Deputy President O’Neill and Commissioner McKinnon) issued the final determination on 19 October 2026 in [2026] FWCFB 281 (matter AM2024/34). The variation was made on the Commission’s own initiative under s.157 of the Fair Work Act 2009, which allows the Commission to vary a modern award where necessary to achieve the modern awards objective. The Full Bench confirmed its view that the clause is “necessary to achieve the modern awards objective”.
A request, not an entitlement
In its decision of 27 August 2026, [2026] FWCFB 225, the Full Bench examined how widely working from home is used under the award, and in what forms. It determined those findings “did not justify a major regulatory intervention compelling employers to allow employees to work from home in a wider range of circumstances”. It decided not to adopt a ‘right to request’ term. It instead found benefit in a term which incorporates “a simple right of an employee to make a request and for their employer to agree to a working from home arrangement”.
Under clause 5A.4, “Despite anything else in this award, an individual employee and an employer may agree to modify the application of” specified award terms to facilitate the grant of a request. In August the Full Bench explained that these terms cover the requirement for ordinary hours to be worked continuously, the employer’s say over when ordinary hours are worked, rest and meal breaks, and some facilitative arrangements already in the award.
Clause 5A.6 lists the matters an arrangement covers: the days, or number, proportion or pattern of days, worked from home; the location of work; any modification of award terms under clause 5A.4; any facilitative agreement under clause 5A.5; the start date; and “how the arrangement may be varied by agreement or terminated by either party”. Clause 5A.7 provides that an agreement “must be one that is made by the individual employee and the employer without coercion or duress”. Note 2 states that an eligible employee may also request a flexible working arrangement under s.65 of the Act.
Five changes after the draft
The deadline for submissions on drafting or technical points in the draft determination was 17 September 2026. Submissions came from Australian Business Industrial and Business NSW (together, ABI), the Australian Chamber of Commerce and Industry (ACCI), the ACTU, the Australian Municipal, Administrative, Clerical and Services Union, the Council of Small Business Organisations Australia (COSBOA), Renko Group and an individual submitter. The Full Bench made five amendments:
- Clause 5A.3 now allows a request to specify days of the week or “the number, proportion or pattern of days”. This took into account submissions from ABI, ACCI, COSBOA and the individual submitter that agreed arrangements may not be prescriptive about days and “may operate more flexibly than this”. The closing words of the subclause were also simplified after the ACTU proposed a change.
- “Working for home” in clause 5A.4 was corrected to “working from home”, after several parties pointed out the mistake.
- Clause 5A.6(a) was amended to match the new wording of clause 5A.3.
- The words “varied by agreement or” were added to clause 5A.6(f), responding in part to a COSBOA submission that the clause should provide for varying agreed arrangements.
- A new Note 1 states that an employee may request and an employer may agree to “a new working from home arrangement or the formalisation of an existing working from home arrangement”. COSBOA had argued that it should be made clear how the clause applies to arrangements already in place, and the Full Bench added the note in response.
No six month delay
COSBOA asked for a six month lead time before the variation took effect.
that a six month lead time was needed because “[s]mall businesses rely on payroll and workforce software providers, bookkeepers and advisers to translate award changes into practice, and providers will require time to support the recording of clause 5A agreements”.
that “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 should not delay giving employees and employers the opportunity to agree to new arrangements “or to legitimise existing arrangements which may be operating inconsistently with current award provisions”.
The determination therefore operates from 26 October 2026.
The clause applies to employers and employees covered by the Clerks Award. It provides a basis in the award itself for formalising arrangements already in place, some of which the Full Bench said may not sit consistently with the award as it currently stands.
Source: [2026] FWCFB 281
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