The Fair Work Commission (FWC) last week issued a Draft Determination proposing new “working from home” (WFH) flexibility for employers and employees covered by the Clerks – Private Sector Award 2020. In simple terms, the Full Bench rejected a combined union application for a proposed “right to work from home” that could only be refused on limited grounds, though has accepted that there does need to be some flexibility in relation to certain Award provisions when work is performed remotely.
What’s being proposed (and why it matters)
The draft determination would allow an employer and an employee to make a written WFH agreement that varies certain Award provisions to better fit how remote work happens in practice. The key issue here is compliance: the FWC acknowledged that many informal WFH arrangements already in place are likely to be inconsistent with the Clerks Award, particularly around continuous hours and prescribed break requirements.
Under the draft determination, an employer and employee could agree:
- to change the timing of mandatory rest and meal breaks, and
- for ordinary hours to be worked on a non-continuous basis (for example, splitting the day to accommodate school drop-off/pick-up).
The FWC also confirmed that existing Award flexibility provisions can be used (when working from home) to:
- vary the spread of ordinary hours to start as early as 6:00am or finish as late as 8:00pm, and
- agree to take a period of ordinary hours as time off and make that time up later during the spread of hours
Importantly, agreements must be in writing and kept as a time and wages record.
What didn’t make it into the draft
The Full Bench did not support the applications of employer groups to:
- extend ordinary hours to 10:00pm (even where the employee had taken time off earlier in the day), nor
- remove certain allowances (such as laundry, first aid and meal allowances) for employees working from home.
Our view: a practical step forward
In our view, the proposed changes are a small but positive step forward. They recognise that WFH is now a normal part of many workplaces, and they create a clearer pathway for employers and employees to agree on arrangements that support real-life needs without potentially breaching the Award. The requirement for a written agreement also helps both sides by clarifying expectations and creating a compliance trail.
What happens next (and what to watch)
This is still a draft determination, and the Full Bench has invited submissions on drafting and technical issues by mid-September.
If and when the draft provisions (and/or variations) become part of the Award (later this year we would think), we’d expect applications to be made to extend the provisions to other Awards that cover employees who regularly work from home.
Keep an eye on HR Success socials (Facebook and LinkedIn) for updates….
Need help with WFH arrangements and compliance?
If you need help managing work-from-home requests, setting up remote work arrangements, or want to make sure your practices remain Award-compliant, reach out to us. We can help you put the right agreements and processes in place so your team gets flexibility and your business stays protected.
Note that this is general information only. It is not formal or legal advice. Information is current and we believe accurate at the time of publication – 31/08/2026.
