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Working from home rights in Australia have been on the move all year. Victoria tried to legislate a right to work from home two days a week, the Fair Work Commission inserted a new work-from-home clause into the Clerks Award, and the Fair Work Act, with its right to request flexible working arrangements, continues to sit above it all. If you employ people, there's a good chance a WFH request is already sitting in someone's inbox, and the rules you apply depend on who is asking and why.
In this article, we unpack the legal mechanisms behind a request to work from home, what clause 5A of the Clerks Award changed from October 2026, where Victoria's proposed WFH laws landed, and the practical steps employers can take to respond to a work from home request without creating legal risk. We also cover how to formalise the informal work from home arrangements many businesses have quietly built up over the past few years.
The main legal mechanism for requesting to work from home is a request for flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth). Simplified, an employee can make one when all of the following apply.
Section 65 has been in the Act since it commenced in 2009. The most significant change came through the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which expanded eligibility and, from 6 June 2023, added a much stricter process for how employers must respond (section 65A) and gave the Fair Work Commission power to deal with disputes (sections 65B and 65C).
In June this year, to a polarising response that ranged from a positive step forward for working parents to jurisdictional overreach, the Victorian Labor government's proposed work-from-home laws passed the lower house of the Victorian Parliament. The Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) would give eligible employees a right to work from home up to two days a week (with some caveats) where it is reasonable to do so. It came close to passing. Then a leadership spill saw the Bill shelved until after the state election.
For those familiar with the Australian workplace relations system, the dismay came down to one question: who gets to make the rules? Like most of Australia, Victorian workplaces are largely governed by the federal Fair Work Act 2009 (Cth) (FW Act), because Victoria referred its industrial relations powers to the Commonwealth in 2009. The FW Act expressly excludes state industrial laws for national system employers, and under federal supremacy, a state law that is inconsistent with a federal law gives way. A state-made workplace right, like a fixed WFH entitlement, runs straight into both.
That is why Victoria went through the Equal Opportunity Act 2010 (Vic) (EO Act) rather than an employment bill. The FW Act carves out room for state anti-discrimination laws, and the EO Act focuses on equality and protected attributes. Here's the catch. The FW Act's flexible work right already relies on protected attributes for eligibility. A blanket two-day WFH right that isn't tied to any protected attribute sits awkwardly in an equal opportunity statute.
The Bill also expressly sends employees who are eligible under section 65 of the FW Act down the FW Act path rather than the EO Act, and suggests existing employer policies may continue to operate.
Clever legal strategy or a cheap vote grab, depending on where you sit politically. Either way, it is dead in the water until at least after the Victorian election on 28 November.
In the latest development, a Full Bench of the Fair Work Commission varied the Clerks – Private Sector Award 2020 by inserting clause 5A, Requests for working from home arrangements.
From the first full pay period starting on or after 26 October 2026, employees covered by the Clerks Award (broadly, private sector clerical and administrative roles) can ask to work from home. Working from home means working at their residence, or at another location the employee chooses and the employer approves. The request must be in writing and specify the day or days of the week, or the number, proportion or pattern of days, they want to work from home.
If you agree, the agreement must be in writing and set out:
The agreement must be made without coercion or duress. You must keep it as a time and wages record and give the employee a copy.
Unlike the FW Act, there is no deadline for you to respond, and no test you must meet to say no.
Now we understand the context; here's your practical take-away of what to do about it all.
The reason for the request tells you which rules apply and what you owe them.
The realistic outcome is a Fair Work Commission dispute, where the Commission can order you to take further steps, find your grounds weren't reasonable, or even order you to grant the request.
The worst case, less likely but worth considering (especially if there's a pattern), is court. Contravening the National Employment Standards carries a maximum penalty per contravention of $109,200 for a company with fewer than 15 employees and $546,000 for larger employers, for conduct on or after 1 July 2026. Serious contraventions (done knowingly or recklessly) carry up to ten times that. A court can also order compensation for the employee on top of any penalty.
It doesn't need to be long. A true policy rarely is. If you have an employee handbook, add a short paragraph that sets out your position on WFH and the intent behind it.
Using O-HR as an example, ours might read:
O-HR is a remote-first business. Our team are senior Australian HR leaders, each with at least ten years' experience. We do the most complex HR work: the crises and challenges that demand senior expertise. Much of that work is discreet and happens behind the scenes, which is why remote works so well for us. Our clients always come first. Being responsive to their needs is core to our business model, so when an engagement requires us on-site, working from home isn't an option. We're the first ones in the room.
Or, if you're a business with administrative staff supporting a front-line team, it might read:
Our front-line team works face to face with clients in the field every day. In support of them, we show up to the office. We are an office-based operation. Working from home may be approved in limited circumstances.
One word of warning: general appeals to culture and collaboration don't cut it. Tie your position to how the work actually gets done. If you'd rather we write it for you, we can do it in a half-hour session. Book here.
I see this trip up so many of the businesses we work with. They agree to a change in good faith and, without realising it, create real risk around award compliance, wage and record-keeping obligations, and underpayment liability.
Clause 5A of the Clerks Award can be used to formalise existing arrangements as well as new ones. You should do it. If you need a hand, book time with our experts. We have the templates and processes ready to go.
If a request lands and you're not sure what to do, you have us to call. We'll help you work through it in a way that respects the employee's rights, protects your operations and keeps your risk low. Book now.
This is a deliberately simplified overview. It won't apply to every situation, and it is not legal advice. It assumes you are a national system employer and reflects the law as at 6 November 2026. We do HR, not law, but we can bring in legal experts when you need them. We're here to help.
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