From the first full pay period starting on or after 26 October 2026, the Clerks Award lets an employee ask in writing to work from home, and lets the employer agree. The employer does not have to say yes, give reasons or reply by a deadline.
The Fair Work Commission added the new clause 5A to the Clerks, Private Sector Award 2020 in a final decision on 19 October 2026 ([2026] FWCFB 281). Victoria is moving separately: some public sector rights start no later than 1 November 2026, and a bill for a legal right to work from home 2 days a week is still before parliament.
Key takeaways
- Clerks Award only. Clause 5A covers employees under the Clerks (Private Sector) Award, not every office worker.
- You can ask, your employer can agree. The Commission refused a "right to request" term, so there is no test an employer must meet to refuse.
- An agreed arrangement must be in writing, and can change how the award's hours and break rules apply on home days.
- Pay rates and leave do not change.
- Victoria's 2 days a week bill is not law. It is waiting on a Legislative Council committee.
What clause 5A says
Clause 5A, "Requests for working from home arrangements", has nine subclauses and three notes. In short:
- Who can ask: an individual employee may request, and an employer may agree to, an arrangement to work from home (5A.1). Working from home means working at your residence, or at another place you choose that the employer approves (5A.2).
- How to ask: in writing, naming the day or days of the week, or the number, proportion or pattern of days, you want to work from home (5A.3).
- What can be adjusted: you and your employer can agree to modify the award rules on working ordinary hours continuously, the employer's say over when ordinary hours are worked, and when rest and meal breaks are taken (5A.4). You can also make the award's existing facilitative agreements, such as changing the spread of hours, making up time, changing start and finish times, or time off instead of overtime pay (5A.5).
- What the agreement must record: it must be in writing and set out the home days or pattern, the location, any modified award terms, any facilitative agreement, the start date, and how the arrangement can be varied by agreement or ended by either party (5A.6).
- No pressure: the agreement must be made without coercion or duress (5A.7).
- Records: the employer keeps it as a time and wages record and gives you a copy (5A.8).
- Existing arrangements: Note 1 says the clause covers a new arrangement or formalising one you already have. The Commission said existing arrangements may be operating inconsistently with the award as it stood, so a written agreement under 5A puts them on a proper footing.
Fair Work Commission, determination PR815538 and decision [2026] FWCFB 281 (Justice Hatcher, President, Deputy President O'Neill and Commissioner McKinnon, 19 October 2026, matter AM2024/34, read 22 October 2026). Clause 5A.1: "An individual employee may request, and an employer may agree to, an arrangement permitting the employee to work from home." Clause 5A.3: "A request by an individual employee for a working from home arrangement must be made in writing and must specify the day(s) of the week, or the number, proportion or pattern of days, that the employee proposes to work from home." Clause 5A.8: "The employer must keep the agreement as a time and wages record and give a copy to the employee."
A request, not a right
Unions asked for more. In its August decision the Commission declined the "right to request" terms put by the ACTU and the ASU, and a similar term from the CPSU, and chose a simple right to make a request instead. So clause 5A sets no grounds for refusal, no time limit for a reply and no requirement to give reasons.
Two routes are still open if the answer is no. Note 3 says disputes about requests can be dealt with under the award's dispute resolution clause (clause 40). And Note 2 points out that an eligible employee can instead make a flexible working request under s 65 of the Fair Work Act, which has its own eligibility rules and response process.
Small business groups asked for a six month delay so payroll providers could catch up. The Commission refused, saying that because clause 5A works by agreement, it puts no compliance burden on an employer who does not agree.
Fair Work Commission, [2026] FWCFB 225 (27 August 2026) at [93]: "For these reasons, we do not propose to adopt a ‘right to request’ term of the type proposed by the ACTU and the ASU, nor the similar term proposed by the CPSU." [2026] FWCFB 281 at [7]: "Because the new clause 5A operates on a consensual basis, the variation does not impose any compliance burden on a non-consenting employer." Case page: Working from home, Clerks Award (AM2024/34).
When it starts
The determination comes into operation on 26 October 2026, but under s 165(3) of the Fair Work Act it applies to you from the start of your first full pay period that starts on or after that date.
Example: 26 October 2026 is a Monday. If your pay week runs Monday to Sunday, clause 5A applies from 26 October. If you are paid fortnightly and the current period started on Thursday 22 October, it applies from the next period, starting Thursday 5 November.
Your pay and leave
Clause 5A changes where you work, not what you are paid. The Clerks Award minimum rates, penalty rates, casual loading and 17.5% annual leave loading are unchanged. Annual leave and personal leave keep accruing on your ordinary hours whether you work them at home or in the office, so the annual leave calculator and personal leave calculator work the same way.
One thing to watch: if your agreement modifies when you work ordinary hours under 5A.4, or swaps overtime pay for time off under 5A.5, it changes how overtime and time off in lieu work for you. Read the written agreement before you sign it.
Victoria: public sector changes by 1 November
Victoria has widened the industrial relations powers it refers to the Commonwealth. The Fair Work (Commonwealth Powers) Amendment Act 2026 (No. 39 of 2026) was assented to on 15 September 2026 and starts on a day to be proclaimed, and no later than 1 November 2026. As of 22 October we found no proclamation.
- Public sector employees (non-executive, in the explanatory memorandum's words) come under the Fair Work Act's limits on fixed term contracts and its casual conversion rules.
- Public sector executives and office holders gain the Fair Work Act's flexible working arrangement rights and its pay secrecy protections: the right to disclose, or not disclose, their pay and to ask colleagues about theirs.
- Enterprise agreements already in force continue under the old rules, so the change mostly bites at the next round of bargaining.
Most of the Act is about Victoria Police bargaining. It does not change leave entitlements.
Fair Work (Commonwealth Powers) Amendment Act 2026 (Vic), read 22 October 2026. Section 2(2): "If a provision of this Act does not come into operation before 1 November 2026, it comes into operation on that day." Explanatory memorandum: "This will ensure that non-executive public sector employment arrangements (not including law enforcement officers) are subject to conditions of and limitations on fixed term contracts and casual employment in the Commonwealth Act"; "the operation of enterprise agreements that were in force immediately prior to the commencement day will not be disturbed by the amendments to the Act."
Victoria's work from home bill
Victoria's bill for a legal right to work from home has not passed. The Equal Opportunity Amendment (Work from Home) Bill 2026 passed the Legislative Assembly unamended on 30 July 2026. On 10 September the Legislative Council referred it to a select committee, due to report by 20 October 2026, and deferred the second reading until the report is tabled. As of 22 October the inquiry was still listed as current and we found no report.
As introduced, the bill would give an eligible employee:
- 2 days a week working from home if they work 38 hours or more a week, or a pro rata period if they work fewer hours, where it is reasonable for them to work from home.
- A written answer within 21 days, with reasonableness judged only on grounds listed in the bill.
- Disputes through the Victorian Equal Opportunity and Human Rights Commission and VCAT.
Employees on probation, apprentices, trainees, interns, graduates and irregular casuals are among those excluded. As introduced, the bill would start on 1 September 2026, and on 1 July 2027 for employers with fewer than 15 employees. Government amendments circulated in the Council, not yet agreed, would move the general start to 1 July 2027 and the small business start to 1 January 2028, change the part-time measure to 40% of weekly hours, allow 28 days to reply, and limit the right to employees whose principal place of residence is in Victoria.
Victorian Legislation, Equal Opportunity Amendment (Work from Home) Bill 2026 (status "Council - second reading (passed Assembly)", read 22 October 2026). Bill as introduced, proposed s 102J: "An eligible employee has a right to work from home for any period (the entitlement period) equal to or less than the specified period if it is reasonable for the employee to work from home for the entitlement period." Legislative Council, 10 September 2026: "this Bill be referred to a select committee for inquiry, consideration and report, by 20 October 2026, and the second reading of this Bill be deferred until the final report of the Committee is presented to the House". Government amendments JS95C. Parliament of Victoria, select committee inquiry.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.