Here's what you need to know about the newly added work-from-home clause to the Clerks Award
Key takeaways
The Clerks Award is about to be amended to insert a Work From Home Clause. This article breaks down what that may mean for employers.
Whether from the city, or Summer Bay, administration work doesn't always need to be done in an office. And yet, the modern award that covers more clerical and administrative staff than any other has contained no mention of working from home … until now.
After a decision last week from the Fair Work Commission, the Clerks – Private Sector Award 2020 (Clerks Award) will be updated to include a Work From Home clause. Will this give all employees a standalone 'right' to work from home? No. Will it actually change a whole lot? Potentially not. Will 'flaming galah' ever find its way back into common usage? Gee, we hope so. But for now, let's stay on track and look at the basics of this proposed change.
What is the Clerks Award?
You might have heard that the Clerks Award is getting a Work From Home (WFH) clause. Let's start basic: what is the Clerks Award?
The Clerks Award is probably the biggest of the 'occupational' awards that applies to private sector workplaces in Australia. There are awards that cover more people. For example, some of the 'industry' awards (think Retail, SCHADS, Hospitality, Fast Food). However, the occupational awards jump in to cover employees where no industry award has a classification that suits their role, or where their industry has no industry award. In this way, the Clerks Award acts as a bit of a safety net to capture clerical and administrative employees who are not covered by an industry award. That's a lot of employees - estimates say about 1.6 million.
What will the new WFH clause do?
Some commentators and union groups are saying this new WFH clause will create a standalone entitlement to work from home. If that were true, it would seem to extend the Fair Work Act (the Act), which limits the right to request flexible work to those within identified categories of employees: parents, carers of school-aged children, employees with disabilities, those over 55 years old, and some circumstances related to family and domestic violence.
So, does the new clause in the Clerks Award create a right to work from home for all? No, we don't think so. By saying that an 'employee may request, and an employer may agree to,' the proposed new clause is softer than the flexible work right in the Act. Indeed, the proposed Award clause anticipates that an employer may not agree to an employee's work from home request.
What the clause may do, however, is broaden the scope of those who have a right to request to work from home. That presents the possibility that employees will seek to rely on this 'right' in disputes if an employee feels they have been treated less favourably because they have made the request. This is an interesting practical outcome of the decision, in circumstances where the Full Bench recognised that its job is not to try to rewrite perceived shortcomings in the legislation. Indeed, the Full Bench said that the Unions failed to establish that there is any real gap by which those in the clerical sector who aren’t entitled to request flexible work under the Act are being denied the ability to work from home in reality.
The reality is (in our experience), where an employee is a good performer, and where the employee requests remote work that would be hybrid and not completely from home, the vast majority of employers are willing to grant that flexibility. The Full Bench agreed, saying:
"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."
To the extent anyone is arguing otherwise, they are barking for clicks or increased membership.
Will we see more disputes about remote work?
This perception that those covered by the Clerks Award may soon have a 'right' to request to work from home could soon be a new battle ground for general protections claims. That is in circumstances where we are already seeing more adverse action claims than ever, many of which are fuelled by increased access to, and use of, generative AI.
The determination which provides the draft amended clause also foreshadows that employees who do not get the WFH arrangement they desire can apply the dispute resolution process under clause 40 of the Award. Such disputes ultimately allow a matter to be taken to the Commission for mediation, conciliation, or (if the parties consent) a hearing. It is likely we can add WFH disputes by clerical and admin staff to increase in disputes about rejections of flexible work requests that we are otherwise seeing in the Commission.
The practical impact
This change in the Clerks Award hasn't yet been implemented; it is proposed. Interested parties who wish to make submissions concerning the drafting or other technical issues arising from the draft determination, have until 17 September 2026 to do so.
Presuming the proposed clause is approved, it would provide employees and employers under the Clerks Award the ability to agree to a remote work arrangement (be that home, or some other location to which the employer agrees), including to vary some of the rigid obligations in the Award around hours of work and breaks. It will allow businesses the flexibility to do what many are already doing. Where an employer agrees to an employee's request, the Clerks Award would now (presuming the variation is finalised following the call for submissions) allow parties to vary the effect of the Award's rules around continuous ordinary hours, when those hours fall, and the timing of rest and meal breaks, and how those matters apply to their circumstances.
Employers should treat this as a genuine but manageable shift rather than a compliance emergency. However, caution should be shown to ensure that any WFH arrangements are well documented in writing including agreed working days and locations, what in the Award is being modified by this arrangement, and when and how either party can end the arrangements. Employers must also ensure they have the processes in place to keep time and wage records as required by law.
Ryan Murphy is a Principal at McInnes Wilson Lawyers in Sydney.
