Clerks Award Work-From-Home Clause Starts 26 October 2026: How to Make the Request and What the Written Agreement Must Say

A Full Bench of the Fair Work Commission (Justice Hatcher, Deputy President O'Neill and Commissioner McKinnon) issued its final decision in the Clerks Award working-from-home case, [2026] FWCFB 281, and a determination, PR815538, inserting a new clause 5A into the Clerks—Private Sector Award 2020. The determination comes into operation on 26 October 2026. Because of section 165(3) of the Fair Work Act, it applies to each employee from the start of their first full pay period on or after 26 October, so a fortnightly-paid employee whose period began on 22 October is covered from 5 November.

The clause is called "Requests for working from home arrangements". The Fair Work Ombudsman published its plain-English page on the new rules on 22 October. Our earlier post on the 27 August draft decision explains why the Bench chose a request-and-agree model rather than a right; this post covers the final text and how to use it.

Three things, and it is worth being precise because the headlines have run ahead of the text.

• A written request route (5A.3). Any individual Clerks Award employee may request a working-from-home arrangement. The request must be in writing and must specify "the day(s) of the week, or the number, proportion or pattern of days" the employee proposes to work from home.
• Permission to bend four award rules by agreement (5A.4). To make an arrangement work, the employee and employer may agree to modify how these terms apply: working ordinary hours continuously (clause 13.6(a)); the employer's discretion over when ordinary hours are worked (13.6(b)); the time for rest breaks (15.2); and the time for meal breaks (15.3). Without clause 5A, an employee who wanted to split a home day around school pick-up was technically outside the award.
• Four facilitative agreements can be bundled in (5A.5). Alteration of the spread of ordinary hours (13.4(c) or 25.2(c) for shiftworkers), making up time taken off (13.8 or 26.5), changes to shift start and finish times (26.4(b)), and time off instead of overtime pay (23 or 29).

"Working from home" is defined in 5A.2 as performing duties at the employee's residence or at another location the employee chooses and the employer approves, so a parent's house or a regional base can be written in.

The Bench was explicit. In the August decision it found the evidence "did not justify a major regulatory intervention compelling employers to allow employees to work from home in a wider range of circumstances" and it declined to adopt a 'right to request' term of the kind the ACTU sought. Clause 5A.1 says an employee "may request, and an employer may agree". There is no 21-day response deadline and no reasonable-business-grounds test inside the clause.

Two protections still sit around it. First, the FWO's page says making a clause 5A request is a protected workplace right, so an employer cannot take adverse action against you for asking (see our general protections checker). Second, Note 2 preserves the separate section 65 flexible working arrangement request, which eligible employees (parents of school-age children, carers, people 55 and over, people with disability, and others) can still make. Section 65 carries the 21-day written response and reasonable-business-grounds rules, and the Commission can arbitrate, as it did in Duffy v Victoria University and Chandler v Westpac. Disputes about a clause 5A request itself go through the award's dispute procedure in clause 40 (Note 3).

Submissions on the draft came from Australian Business Industrial and Business NSW, the Australian Chamber of Commerce and Industry, the ACTU, the Australian Services Union, the Council of Small Business Organisations Australia (COSBOA), Renko Group and an individual, Adrian Boothman. The Bench made five changes:

• Requests and agreements may describe the days as "the day(s) of the week, or the number, proportion or pattern of days", not only fixed weekdays. Employer groups and Mr Boothman argued real arrangements are often "two days a week, agreed with the manager" rather than "Tuesdays and Thursdays".
• The agreement must say how it can be varied by agreement, as well as how either party can end it (5A.6(f)), after COSBOA pointed out the draft only dealt with termination.
• A new Note 1 confirms the clause can be used to formalise an existing informal arrangement, not just to start a new one.
• A "working for home" typo in 5A.4 was fixed.
• COSBOA asked for a six-month lead time so payroll providers and bookkeepers could catch up. The Bench refused: because the clause only operates where both sides consent, it "does not impose any compliance burden on a non-consenting employer", and delaying it would deny people the chance to legitimise arrangements that may be operating inconsistently with the award today.

If the employer agrees, clause 5A.6 requires a written agreement that identifies:

The agreement must be made without coercion or duress (5A.7). The employer must keep it as a time and wages record and give the employee a copy (5A.8), which puts it inside the Fair Work Regulations' seven-year record-keeping rules. Clause 5A does not limit the award's individual flexibility arrangement clause (5A.9), so an IFA remains available for changes outside the 5A.4 and 5A.5 lists.

Our Clerks Award work-from-home request builder drafts the clause 5A.3 request and attaches a proposed agreement covering items (a) to (f), with signature blocks for both parties.

If you already work from home informally, Note 1 is your friend: ask to formalise it. A written agreement protects you if a new manager arrives, and protects the employer because it records which award terms were varied and why.

If you are a shiftworker under Part 5 of the award, the clause lists the shiftwork equivalents (25.2(c), 26.5, 26.4(b), 29), so the same mechanism applies.

Employers should not treat a clause 5A agreement as a licence to change pay. The clause allows adjustments to the timing of hours and breaks and the existing facilitative agreements, nothing else. Penalty rates, overtime thresholds, minimum engagement and classification stay as they are unless an IFA or enterprise agreement says otherwise. Working-from-home WHS duties also continue; our WFH WHS obligations checker lists them.

Victoria: the separate state bill for a statutory right to two days' work from home a week was still before the Legislative Council on 23 October 2026, so it is not law. Our Victorian WFH eligibility checker tracks it.

Other awards: the Commission has described clause 5A as the first step towards a model term for clerical work. Nothing has been inserted into any other award yet.