WFH Law 2026: Consultation Explained

Let's separate the facts from the headline hype. The Fair Work Commission ran a consultation between December 2025 and 14 March 2026 on inserting a new work from home clause into modern awards. The consultation is now closed, written submissions have been published, and the Expert Panel is preparing a draft clause for hearings later in 2026.

What the draft clause would actually do:

• Give eligible employees under modern awards a right to request to work from home, separate from the existing s.65 flexible work request
• Require the employer to respond in writing within a specified period (21 days was the working proposal)
• Limit the grounds on which an employer can refuse to a narrow list of "reasonable business grounds" specifically adapted to WFH (e.g., role genuinely requires on-site presence, security of data, client-facing requirements)
• Create a dispute resolution pathway directly to the Fair Work Commission if the employer refuses on grounds that aren't genuine
• Include minimum safety, reimbursement, and work health standards for home-based work (OH&S obligations, cost sharing, right to disconnect)

What the draft clause would NOT do:

• Give every worker an automatic right to work from home
• Override genuine role-based requirements
• Apply to enterprise agreement workers (at least initially)
• Force any employer to set up or fund home office infrastructure beyond what the award specifies

The key change from the current s.65 system is procedural. Under s.65, you can already request flexible work if you're in an eligible category (parent, carer, over 55, disability, DV survivor). The new clause would be broader, attached to your award rather than to your personal circumstances, and with a more robust enforcement pathway.

This is the part that's been heavily debated. The draft framework is targeted narrowly at modern award workers, at least for the first phase.

Phase 1 (the current proposal): Modern Award employees. About 21% of Australian employees, roughly 2.4 million people. The clause would apply when the Fair Work Commission inserts it into specific awards, starting with awards where WFH is genuinely feasible (Clerks — Private Sector, Banking Finance and Insurance, Contract Call Centres, Professional Employees, Legal Services, Telecommunications Services).

Phase 2 (proposed, not yet decided): Expansion to more awards. This would include awards where some roles are WFH-feasible but most aren't (Retail, Hospitality in admin roles, Manufacturing in office roles). The FWC would need to define which classifications within those awards qualified.

Not covered (at least initially):

• Employees on enterprise agreements (about 38% of the workforce). EAs are negotiated between employers and employees, and the FWC generally doesn't impose terms on existing EAs
• Award-free employees earning above the high income threshold (currently $175,000 from 1 July 2025)
• Casuals with less than 12 months regular and systematic employment
• Workers in awards where the nature of the work fundamentally precludes WFH (construction, trades, healthcare clinical staff, transport drivers)

One important clarification: if you're currently eligible for a s.65 request (parent of school-age child, carer, 55+, disability, experiencing DV), you keep that right regardless. The new award clause is additional, not a replacement.

There's also a push from some unions to extend the clause to enterprise agreement renewals, so that any new EA negotiated after 2027 would need to include a WFH clause at least as generous as the award clause. That proposal is not yet formally under consideration but it's gaining traction.

While the federal process grinds through its consultations, Victoria has been moving independently with its own work from home bill. This matters because it creates the possibility of two overlapping legal frameworks for Victorian workers: the federal modern award clause and a state-based statutory right.

The Victorian Government introduced the Work from Home Rights Bill 2026 to the Legislative Assembly on 18 February 2026. Key features of the Victorian bill:

• Covers all employees in Victoria regardless of award or EA coverage
• Creates a statutory right to request WFH, with reasonable refusal grounds
• Includes a specific "right to disconnect" outside of working hours
• Requires employers to provide a reasonable contribution to home office costs (electricity, internet, equipment)
• Includes WorkSafe Victoria jurisdiction for home-office WHS compliance
• Creates a new Work From Home Commissioner role within the Fair Work Victoria structure

The bill passed its first reading on 19 February and is currently before a parliamentary committee. Second reading is expected in May 2026 with the bill potentially becoming law by August 2026, well before any federal award clause comes into force.

The constitutional picture is complicated. The federal workplace relations system generally overrides state laws in the area of terms and conditions of employment (s.109 Constitution). But the Victorian bill is carefully drafted to focus on areas where federal law is silent or where concurrent state regulation is permissible: WHS, the right to disconnect beyond the current federal minimum, and employer contributions to home office costs.

Business groups (Ai Group, VECCI) have already flagged possible High Court challenges to the Victorian bill on constitutional grounds. Unions and the Victorian government are confident it will survive. Either way, it sets the tone for the federal process: the FWC now has a concrete example of what a statutory WFH framework looks like, and there's political pressure from Victoria to match or exceed it.

The major union submissions to the FWC consultation are publicly available and give a clear picture of where organised labour wants this to land.

ACTU position: The Australian Council of Trade Unions wants a broad, enforceable right to WFH covering all eligible roles under modern awards. Key demands:

• Presumption in favour of the request being granted where the role is WFH-feasible
• Narrow "reasonable business grounds" for refusal, with the onus on the employer to demonstrate
• Two days per week as a floor (not a ceiling) for hybrid arrangements
• Statutory right to disconnect integrated with WFH provisions
• Employer contribution to home office costs: minimum $30/week for utilities and connectivity
• Right to dispute refusal directly at FWC with expedited resolution (14 days)

ASU (Australian Services Union): Particularly active on this issue because it represents many of the clerical, local government and finance workers who'd be covered in Phase 1. ASU is pushing for the clause to cover casuals who've worked regular shifts for 6+ months, not just 12+.

Finance Sector Union (FSU): Has been pressing for specific WFH rights for banking and insurance workers since 2022. FSU submission argues that the pandemic demonstrated WFH feasibility in finance and that employers have been clawing back WFH without justification since 2023.

CPSU (Community and Public Sector Union): Federal public servants already have strong WFH arrangements under their enterprise agreements following the 2024 APS Enterprise Agreement. CPSU is pushing for the federal award clause to be at least as generous as the APS baseline (average 40% of working time WFH).

Unions are also pushing hard for the WFH clause to be coupled with a strengthened right to disconnect. Current s.333M of the Fair Work Act (which took effect in 2024 for large employers and 2025 for small) gives employees the right to refuse unreasonable contact outside working hours. Unions want this embedded within WFH arrangements so that working from home doesn't translate into being always on.

The employer side has mostly opposed, or argued for significant narrowing of, the proposed WFH clause. Key arguments from the main business submissions.

Ai Group (Australian Industry Group): Argues that a prescriptive award-level WFH clause would "undermine employer flexibility and impose costs on small business that are disproportionate to the benefit." Ai Group's counterproposal is a non-binding "guidance note" from the FWC rather than an enforceable clause, with WFH arrangements continuing to be negotiated case by case.

ACCI (Australian Chamber of Commerce and Industry): Focuses on the compliance burden for small and medium businesses. ACCI argues that forcing small employers to formally respond to WFH requests within 21 days, demonstrate "reasonable business grounds" for refusal, and contribute to home office costs would amount to significant additional regulation. ACCI supports the existing s.65 framework as sufficient.

BCA (Business Council of Australia): Takes a more nuanced position. BCA acknowledges that WFH is "here to stay" and that large employers are already managing it successfully. BCA opposes a prescriptive award clause but supports a voluntary best-practice framework developed between employer and employee representatives.

Retailers Association and AHA (Australian Hotels Association): Both oppose the clause as applied to retail and hospitality. Their argument is that WFH is not genuinely feasible for the majority of roles in their sectors, and that introducing the clause would create administrative complexity without benefit.

Common threads in employer opposition:

• Regulatory burden on small business
• Potential for disputes even where WFH is not feasible
• Home office cost contribution is opposed across the board
• Concern about productivity monitoring and management of remote staff
• WHS liability for home workplaces

What's notable is that no major business group is arguing that WFH should be prevented. The fight is about whether the right to WFH should be a statutory entitlement or a negotiated arrangement. That's a much narrower debate than it would have been five years ago.

Let's be realistic about the timeline. Even if the FWC moves quickly, a new enforceable WFH clause is not going to be in your award tomorrow. Here's the expected sequence.

• 14 March 2026: Consultation closed (DONE)
• April-May 2026: FWC analysis of submissions and drafting of initial clause text
• June-July 2026: Publication of draft clause and further consultation round
• August-September 2026: Hearings at the Fair Work Commission (likely 5-7 hearing days)
• October-November 2026: Decision issued, with reasons
• December 2026 - February 2027: Implementation period as the clause is inserted into the first tranche of modern awards
• 1 March 2027 (earliest realistic date): Clause operative in the first Phase 1 awards

That's the optimistic path. It could easily slip by 6-12 months if there are significant objections, if business groups seek judicial review, or if the decision is appealed. Historically, major modern award clause changes take 18-24 months from consultation to operation. Some have taken longer.

Meanwhile, the Victorian state bill is on a much faster track and could become law by August 2026 (with commencement potentially in early 2027). If that happens, Victorian workers will have statutory WFH rights before the federal award clause takes effect. Workers in other states would be left waiting for the federal process.

A final unknown: the federal election. The current government's WFH agenda is part of its "fair and flexible workplace" platform. An election is due by May 2028. A change of government before 2027 could materially reshape the process, either accelerating it (if Labor retains) or potentially slowing or reversing it (if the Coalition wins on a deregulation platform).

You don't have to wait for the new law. Your existing rights are significantly better than most people realise, and you can use them today.

1. Use section 65 of the Fair Work Act. If you're a parent or carer of a child school age or younger, a carer under the Carer Recognition Act, a worker with a disability, a worker aged 55+, or experiencing family or domestic violence, you already have a formal right to request flexible work arrangements, including WFH. Your employer must respond in writing within 21 days and can only refuse on reasonable business grounds. If they refuse without those grounds, you can take the dispute to the Fair Work Commission.

2. Use the right to disconnect (s.333M). Since August 2024 (large employers) and August 2025 (small employers) you have the right to refuse to monitor, read or respond to contact from your employer outside your working hours, unless the refusal is unreasonable. Use this actively. It's the thin edge of the wedge on WFH protections.

3. Negotiate directly. If you're not eligible for a s.65 request, you can still ask. In writing. With a specific proposal. Many employers who'd reflexively say "no" to a formal request will say "yes" to a well-structured informal one. Calculate your commute costs, show how you'll maintain productivity, propose a trial period.

4. Check your enterprise agreement. If you're on an EA, it may already include WFH provisions that are better than anything the FWC is considering. Federal public servants, bank workers, and many big company employees already have negotiated WFH rights.

5. Engage with the consultation. While the submissions phase is closed, public hearings are still ahead and the FWC will take further input via appearances. If you have a specific story about WFH affecting your work, you can provide it via your union or via direct submission at the hearings phase.

Use our unfair dismissal calculator if an employer's refusal of WFH has contributed to your exit from a role. And watch our tracking page on the FWC consultation for updates as the hearings approach.