Working from home – consider the impact

The Fair Work Commission (Commission) is receiving submissions in the context of commencing a new matter on its ‘own initiative’ to develop a working from home (WFH) term in the Clerks Private Sector Award 2020 (Clerks Award).  There is every indication that once such a term is developed, it will be included in other Modern Awards appropriate for such a clause.

Employers should take note of these developments and consider how, if implemented, their workplace and working arrangements and employment contracts might be affected.

Why is this happening?
The Commission in its Modern Awards Review 2023-24 Report flagged that it would consider variations to Modern Awards in various areas – the developing area of WFH being one of them.  This kind of review was identified as needed to ensure that Modern Awards meet the Modern Award objectives.  The Commission has already heard from parties as to whether variations to Modern Awards were needed to support WFH arrangements.

Among other things, WFH arrangements are seen to be important to support workers with caring responsibilities (acknowledging this may not be relevant to all Modern Awards, or industries).[1]

Why the Clerks Award?
This is the most commonly used Modern Award where WFH arrangements are likely to be seen.  WFH arrangements were temporarily inserted into this award to permit WFH arrangements during COVID 19, and extended its operation until it ceased on 30 June 2021.

What will the Commission consider?
A simple insertion of a WFH clause will lead to unintended consequences without proper consideration of all of the issues which might impact working arrangements.

The Commission has identified various issues for consideration.  These issues of themselves highlight the complexity of the task.  In its statement, these matters are noted as a provisional list of issues, for consideration (all references are to the Clerks Award):
(1)     Are variations to the Clerks Award to include a ‘working from home’ term necessary to achieve the modern awards objective in s 134 of the FW Act?

(2)     How should ‘working from home’ be defined?

(3)     Would an appropriate ‘working from home’ term include a right for employees to request working from home arrangements? If so, in what circumstances should a right to request be available and in what circumstances would a request be able to be refused by the employer? Alternatively, should such a clause be facilitative in nature only?

(4)     What, if any, modifications of the provisions of the Clerks Award dealing with:

(a)     the spread of ordinary hours (clause 13.3);
(b)     continuous ordinary work hours (clause 13.6(a));
(c)     the requirement for ordinary work hours to be worked at the discretion of the employer (clause 13.6(b));
(d)     the maximum number of ordinary hours per day (clause 13.7);
(e)     breaks (clause 15); and
(f)      allowances (clause 19)
… should be considered in developing an appropriate ‘working from home’ term to give effect to this intention?

(5)     How will the employer’s obligations in respect of overtime (under clause 21) operate alongside a ‘working from home’ term? In particular, how will the working of overtime hours be authorised and recorded?

(6)     Should the ‘working from home’ term apply to all classifications or groups of employees covered by the Clerks Award, or only some?

(7)     How would a ‘working from home’ term interact with the right to disconnect in s 333M of the FW Act and clause 13A of the Clerks Award?

(8)     Are there any other matters that should be considered in a ‘working from home’ term?

Where to from here?
Hearings will be conducted to receive submissions about the list of provisional issues to consider on Friday 13 September 2024, which will be followed by a final list of issues to consider.

EMA Legal will keep this matter under review, and inform our valued clients and subscribers accordingly.

[1] See the Modern Awards Review 2023 – 2024 Final Report 18 July 2024 at [102].