Article provided by Workplace Law
The COVID-19 pandemic and associated public health orders which were issued saw employees stopping their daily office commute and work from their kitchen tables or bedrooms. In those circumstances, many employees were also providing domestic care and education support to their families and young children.
For some employers, working from home was embraced and many did not return to the office, with other workplaces reducing their office floor print and introducing hybrid working arrangements. While for other employers there has been a complete cycle with the rolling back of working from home policies and return to office mandates.
Much like pandora’s box, the working from home experience opened up greater flexibility for employees and employers alike. However modern award terms are incompatible with providing genuine flexibility to work from home and many working from home arrangements may be non-compliant with modern award terms.
The Fair Work Commission (FWC) identified in the Modern Awards Review 2023-2024 Final Report (Final Report) that consideration needed to be given as to whether the modern awards contained appropriate provisions to accommodate and provide access to working from home arrangements. In 2024, the FWC subsequently initiated proceedings for the development of a working from home award term to be inserted into the Clerks – Private Sector Award 2020 (Clerks Award).
Following a process which commenced in October 2024, this week, the Full Bench of the FWC released a draft variation to the Clerks Award to insert a new working from home term (proposed WFH term).
The proposed WFH term will facilitate working from home arrangements for employees covered by the Clerks Award. The proposed variation specifies that the request is between an individual employee and the employer and must be in writing, specifying the day or days on which it is proposed for the employee to work from home.
The proposed WFH term also addresses the situation where modern award terms may need to be modified to facilitate a working from home request to ensure compliance with award terms. The application of the following Clerks Award terms may be modified with agreement:
Clause 13.6 – which deals with how ordinary hours of work are to be worked (continuously except for rest and meal breaks, and at the discretion of the employer in accordance with the Clerks Award)
Clause 15.2 - the time that rest breaks are to be taken
Clause 15.3 – the time that meal breaks are to be taken
The proposed WFH term provides that as part of a working from home arrangement, an employee and employer may enter into a facilitative agreement dealing with the following:
Altering the spread of ordinary hours
Making up of time taken off during working hours
Changes to start and finish times to a shift
Time off instead of payment of overtime
These clauses are necessary to remove award compliance impediments to implementing working from home arrangements to facilitate the ways in which people work from home and may structure their working day while working from home. The Full Bench identified that employees working from home largely set their own hours of work and when to take their breaks and may often structure their working day to attend to household management, their caring responsibilities and recreational activities.
Any working from home arrangement that is made must be in writing and include relevant information including:
The days on which the employee will work from home and the location from which work is to be performed from when working from home
If the application of any award terms are to be modified
Any facilitative agreement that is made
The start date of the arrangement
How the arrangement may be terminated by either party
Any working from home arrangement that is agreed between an employee and employer must be without coercion or duress.
There will also be recording keeping requirements, where the agreement must be kept as a time and wages record. Under the Fair Work Act 2009 (Cth) employee records must be kept for 7 years.
The proposed WFH term will help employers with employees who are covered by the Clerks Award to enter into award compliant working from home arrangements.
Finally, while the proposed WFH term will only amend the Clerks Award, the Final Report did anticipate that any term that was developed may be a model which may be adapted for other modern awards.
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