Big Changes are Here to Work From Home Arrangements from Fair Work Commission Announced

A new option for flexible work, not a new entitlement

The Clerks – Private Sector Award 2020 is being amended to add a working from home clause. It will be the first modern award to include one. The clause gives employers and employees a way to agree on working from home arrangements, but it does not give employees an automatic right to work from home.

Does this mean employees have a right to work from home?

No. The unions had proposed a "right to request" that would have presumed approval, and the Fair Work Commission did not adopt that approach. Under the new clause 5A, an employee can make a request, and the employer can agree or disagree without having to give a reasonable justification.

How does an employee make a request?

The request must be in writing. It needs to set out the days the employee wants to work from home, or the number, proportion or pattern of days they are asking for.

Can the award's working time rules be changed?

In some cases, yes. Under clause 5A.4, the parties can agree to modify the award's rules on continuous ordinary hours, the employer's discretion over when hours are worked, and the timing of rest and meal breaks. This is useful for remote arrangements that don't fit neatly within those rules.

Clause 5A.5 allows the award's existing facilitative provisions to be used to vary other terms, such as the spread of hours, making up time, shift start and finish times, and taking time off instead of overtime pay.

Overtime and penalty rate entitlements are unchanged.

What must a working from home arrangement include?

Any arrangement made under these provisions must be in writing and should cover:

• the agreed working from home days;
• the work location;
• any modified award terms that apply;
• any facilitative agreement that relies on the award's mechanism;
• the start date; and
• how the arrangement can be varied or ended.

Can an employer refuse a request?

Yes. Because the clause is consensual, an employer can decline. There is no set deadline for responding, and no requirement to give reasons.

However, making a request is likely a workplace right under the Fair Work Act 2009 (Cth). An employer must not treat an employee adversely because they made one. Disputes may be dealt with through the award's dispute resolution procedure in clause 40, so employers should handle requests consistently and keep records of their decisions.

What about people already working from home informally?

The clause can be used to formalise existing informal working from home arrangements, so long as the requirements above are met.

What else is on the way?

Similar terms are expected in other modern awards. Victoria has also planned a law giving eligible employees a right to work from home up to two days a week, now expected to start on 1 July 2027. A private member's bill in the federal Senate has also been proposed, but it is not certain to pass.

This article is general information only and does not constitute legal advice. Every matter is different. Speak with one of our employment lawyers about your specific circumstances.

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