The Clerks Award and the New Working From Home Provisions

The Fair Work Commission recently issued a decision regarding the Clerks Private Sector Award 2020. The Clerks Award acts as an occupational safety net for approximately 1.6 million clerical and administrative employees across Australia. While remote work is already common, this update seeks to formalise these arrangements within the award framework.

Does the new clause create an absolute right to work from home?

The short answer is no. The new clause 5A.1 states that an individual employee may request an arrangement to work from home and the employer may agree to it. The Fair Work Commission explicitly rejected union proposals for a presumption towards approving requests. The tribunal noted that the evidence does not support the proposition that employers are refusing requests on arbitrary or discriminatory grounds. Employers retain the ability to decline a request based on legitimate business interests. However, disputes regarding these requests can be dealt with under the dispute resolution process of the Clerks Award.

What practical flexibilities does the clause offer?

Where an employer and employee reach an agreement, the new provision allows them to modify the application of several rigid award terms. Parties can alter the requirement to work ordinary hours continuously and the requirement that ordinary hours be worked at the discretion of the employer.  Furthermore, agreements can modify the time for taking rest breaks and meal breaks. The new provisions also permits facilitative agreements to alter the spread of ordinary hours.

What are the next steps for businesses?

The new changes are a manageable shift for employers. The Award will now require that any approved working from home agreement must be documented in writing. This documentation must detail the approved days, the specific location where work will be performed, the exact modifications to any award terms, the start date and the methods for terminating the arrangement. Employers must keep this agreement as a time and wages record.

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on 08 6241 6129 or email ecalegal@ecawa.org.au.