Clerks Award Working From Home (Clause 5A): Why "Employers Won" Is the Wrong Read

A Full Bench of the Fair Work Commission handed down [2026] FWCFB 225 on 27 August 2026, deciding to vary the Clerks — Private Sector Award 2020 by inserting a new clause 5A, headed "Requests for working from home arrangements". The bench was Justice Hatcher, Deputy President O'Neill and Commissioner McKinnon. They heard the matter on 10 and 11 February 2026.

It is worth knowing how this started, because it wasn't a union claim. The Commission began the matter itself on 29 August 2024 under s157(3)(a) of the Fair Work Act, acting on a conclusion from its own Modern Awards Review 2023-24. Two years later, here we are.

The scale is the part most coverage buried. The Clerks Award covers roughly 1.56 million clerical and administrative employees across Australia. If you employ someone who does your admin, your reception, your accounts, or your customer service, there is a decent chance this award covers them and you have never read it end to end.

What clause 5A does: an employee can ask, in writing, to work from home. Where the employer agrees to an arrangement, the clause then modifies how three of the award's rigid provisions apply to that employee — the requirement for continuous ordinary hours, the employer's discretion over when ordinary hours are worked, and the timing of rest and meal breaks.

What clause 5A does not do: it does not compel any employer to allow working from home. The Full Bench was explicit that there was no need for a term requiring it.

One thing to be clear about before anyone panics or celebrates. This is a draft determination, not a live award term. Submissions on the draft close at 5pm AEST on Thursday 17 September 2026. The shape can still move.

The Australian Industry Group called the decision historic and said the Commission had "largely adopted the approach advanced by Australian Industry Group". Chief Executive Innes Willox said it "gives employers and employees greater ability to agree on arrangements that suit their circumstances", and that the Clerks Award provisions were "established in a different era, when workplace attendance and more highly supervised and regimented systems" were the norm.

On the numbers, Ai Group has a case. The ACTU and the ASU went for a right to request carrying a presumption of approval, and lost it. They sought a wider spread of ordinary hours and variations to allowances. Lost those too. The unions asked the Commission to accept that employers were knocking back requests on arbitrary or discriminatory grounds, and the bench declined, finding that "the evidence does not support the proposition that employers are, to any significant degree, refusing requests for working from home arrangements on arbitrary, capricious or discriminatory grounds".

The ASU's read was rather different. "This is an important victory today, but it isn't the finish line."

Both statements are defensible. Neither is the whole decision. And a small employer reading either one and concluding that nothing much has changed for them is going to be wrong in a specific and expensive way.

Here is the sentence that matters more than any of the above. A request made under clause 5A is a workplace right protected by section 340 of the Fair Work Act. Disputes about those requests can be referred to the Commission's dispute resolution process.

Section 340 is the general protections provision. It prohibits an employer taking adverse action against a person because they have, or have exercised, a workplace right. That is a different universe of risk from an award term.

Two features make it different. The first is that general protections claims have no cap on compensation and, unlike unfair dismissal, no minimum employment period and no small business exemption to hide behind. The second is section 361, the reverse onus: once an applicant establishes the objective facts, the law presumes the action was taken for the prohibited reason, and it falls to the employer to prove otherwise. You have to prove why you did it. In writing, ideally, and contemporaneously.

So the practical effect is this. Before clause 5A, an employer who handled a WFH conversation badly had an awkward conversation. After clause 5A, an employer who cuts an employee's shifts, passes them over, or manages them out in the weeks after they put a WFH request in writing is looking at an adverse action claim in which they carry the burden of proof.

Nobody has to have behaved badly for that to become a problem. The timing does the work.

The Full Bench also said that "generic and blanket HR answers are not sufficient alone to establish a reasonable business ground for refusing a request".

Sit with what that rules out. "We don't do working from home." "It's not our policy." "We need everyone in the office for culture." A templated paragraph pasted into an email and sent to four people in the same week. Each of those is precisely the kind of answer a business without an HR function reaches for, because it is the answer that takes ninety seconds instead of an afternoon.

The irony is hard to miss. The Commission accepted the employer argument that refusals are generally being handled reasonably, then set a documentation standard that a great many small employers do not currently meet. The businesses most likely to fall short are not the ones that were behaving badly. They are the ones with nobody whose job it is to write things down.

Bigger employers will absorb this without noticing. They already have a flexible work request process running for section 65 requests, a template library, and someone in HR who owns it. A firm with nine staff and a bookkeeper has none of that, and now has a documentation obligation attached to a protected workplace right.

Strip out the politics and the exposure is fairly specific.

You can still say no. That has not changed and the Full Bench was clear about it. The award will not compel you to allow working from home.

How you say no is now the risk. A refusal needs a reason that is genuine, specific to the role and the business, and recorded at the time you make it. Not reconstructed eighteen months later when a claim lands and nobody can remember who decided what.

What you do next is also the risk. The s340 exposure isn't really about the refusal itself. It's about everything that happens afterwards. Rosters, promotions, performance management, redundancy selection. If any of those move against someone who recently made a request, you need to be able to show why, and the presumption starts against you.

The award is still the award. Clause 5A modifies the continuous-hours and break provisions only where you have agreed an arrangement. Informal WFH with no agreement doesn't switch those off. Plenty of businesses have been running loose hybrid arrangements for five years while quietly breaching span-of-hours and break provisions the whole time. This decision doesn't fix that, and the added attention on the award won't help anyone who has been.

If you want to know whether a specific refusal is likely to hold up, our general protections checker walks the adverse action elements, and the general protections hub covers the reverse onus in more detail.

There is a serious case that this piece is overcooking it, and it should be put fairly.

The Full Bench found that working from home arrangements are "widespread to the extent that they may now be considered an entrenched feature of employment in the clerical and administrative sector". If that is right — and the evidence before the Commission said it was — then clause 5A largely writes down what most workplaces already do. Most requests already get approved. Most employers are not looking for a fight about it.

On that view the compliance burden is a one-off: build a request process, use it, keep the file. Businesses already handling hybrid work competently will barely feel this. The s340 point is also not new law. It is the existing general protections regime attaching to a new right, and employers have been living with s340 since 2009 without the sky falling.

Where I'd still push back: the businesses with the thinnest processes are the ones with the highest exposure, and they are also the least likely to read a Full Bench decision or a draft determination. The gap between the employers who will comply comfortably and the employers who will get caught is not a gap in intent. It's a gap in administrative capacity, and no press release from either side is aimed at closing it.

1. Work out whether the Clerks Award covers your people. A surprising number of employers assume it doesn't. Admin, reception, accounts and clerical roles across almost every industry fall under it unless another award or an enterprise agreement applies. Check before you assume you're out.

2. Write down how you'll answer a request, before you get one. Who receives it, who decides, what a genuine business reason looks like for each role, and where the decision gets recorded. Doing this while nothing is at stake produces a far better document than doing it under pressure.

3. Bin the blanket refusal template. If your answer to a WFH request is the same paragraph regardless of who asks or what they do, the Full Bench has already told you that won't establish reasonable business grounds on its own.

4. Look at your existing informal arrangements. If people are already working from home without a documented agreement, the award's continuous-hours and break provisions have been applying to them in full the whole time. Worth knowing now.

5. If you have a view, submissions close 5pm AEST Thursday 17 September 2026. This is a draft determination in AM2024/34 and interested parties can make submissions. Employer groups will. Very few individual small businesses ever do, which is part of why award terms keep getting written by people who have never run one.

Our AI advisor can check award coverage for a specific role and work through whether a particular refusal reason is likely to stand up.

General information, not legal advice. Based on [2026] FWCFB 225 (AM2024/34) as reported to 30 August 2026. Clause 5A is a draft determination and its final terms may change before it takes effect. Verified 30 August 2026.