Working from home under the Clerks Award: What employers need to know

Many members may have already heard in the news regarding changes to rules regarding work from home for Clerical employees (or staff under the Clerks Private Sector Award 2020), and may in turn be wondering what it means for your business.

Though effort was made to make this part of the changes by unions and various lobby groups, the actual amendments themselves are significantly removed from this requirement, nor do they displace or overrule pre-existing flexible working arrangement requests.

Below is an overview of what this clause does, and most importantly what it means for your business

Award based right to REQUEST/not Demand Working from Home

An important distinction is that an employee may request the right to work from home. This does not mean that the employee has an automatic entitlement.

Additionally, the employee making the request is required to confirm in writing:

• The proposed days; or
• The number of days; or
• Proportion or pattern of days

That the employee proposes to work from home.

Limits of Application:

For avoidance of doubt, this clause will ONLY apply to staff who fall under the Clerks Private Sector Award 2020. This award has a broad coverage, but may not apply merely because your staff are engaged in some clerical based activities. Members who are seeking confirmation on award coverage are encouraged to contact our ER Advice Team.

Adjustment of Continuous Hours, Meal Breaks and Rest Breaks

The clause also allows for the employer and employee, who enter into this arrangement, to make adjustments to facilitate the operation of these hours, including scheduled hours of work, start finish times, and break times.

Employer Requirements: Requirement to Respond

Whilst the clause does not impose any specific requirement to agree, it does impose some requirements on the Employer. Broadly speaking the clause:

• Requires that the employer acknowledge and provide response to any such request
• Require the employer and employee to try and resolve any disputes internally, and
• Gives the employee capacity to refer disputes to the Fair Work Commission for conciliation

What this Means for You

it is unclear yet whether any decisions under this clause would give rise to enforcement of orders, given the broad and somewhat ambiguous wording of the clause.

However (much like with Flexible Working Requests) a business should be prepared to provide a reasonable written response to any such request, and include any basis for refusals such as:

• Operational difficulties
• Unreasonable requirements to spend monies to make adjustments
• Workplace specific requirements in day to day process that do not facilitate working from home arrangements
• Any other reasonable grounds for refusal.

This is particularly important as employees have a right to pursue in the Fair Work Commission a dispute under Clause 40, Dispute resolution.

In this clause the rights of employers and employes to progress a dispute about any matter under the award or the National Employment Standards (NES) of the Fair Work Act 2009, are explained. The process involves:

1. first trying to resolve the dispute at the workplace through discussion between the employee and their manager/supervisor.
2. If the dispute is not resolved, then trying to resolve through discussion between the employee and more senior levels of management.
3. If the dispute is unable to be resolved at the workplace the dispute may be referred to the Fair Work Commission.
4. The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
5. If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it considers appropriate for resolving the dispute.
6. A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process.
7. While this procedure is being followed, work must continue and an employee must not unreasonably fail to comply with any direction given by the employer about performing work, that is safe and appropriate for the employee to perform.

Additional information on the proposed changes can be found here: Working from home – Clerks Award decision issued | Fair Work Commission