Business Toolbox

The Fair Work Commission's (FWC) recent decision on a new working from home provision to the Clerks—Private Sector Award 2020 will significantly impact how employers manage remote work arrangements.

The decision is effective from October 26.

Our Employee Relations Helpline team explains how the changes may impact workplaces and advises that employer consider how they may interact with their operational requirements and existing workplace policies.

What is the new working from home provision?

Under clause 5A of the Clerks Award, employees, including shift workers, can request an arrangement to work from home or another location approved by the employer.

Employees must make the request in writing and specify the day or days they propose to work from home.

The provision gives employers and employees flexibility to agree on a new working from home arrangement or formalise an existing one. Clause 5A does not give employees an automatic right to work from home or require employers to approve requests. Employers do not need to rely on prescribed grounds to refuse a request made under clause 5A.

Where an arrangement is agreed, the agreement must be recorded in writing and identify:

• The agreed days of the week or number, proportion or pattern of days the employee may work from home
• The location where work will be performed
• Any agreed modifications to award provisions
• Any facilitative agreements entered into by the parties
• The start date of the arrangement
• How the parties can agree to change the arrangement and how either party can end it

The clause allows employers and employees other than shift workers to agree to modify certain award provisions to facilitate working from home, including when rest and meal breaks are taken, if ordinary hours are worked continuously and the employer’s discretion over when ordinary hours are worked.

Existing facilitative arrangements relating to the spread of ordinary hours, changes to shift starting and finishing times, make-up time and time off instead of payment for overtime may also be incorporated into a working from home arrangement.

The employee and employer must enter into the agreement without coercion or duress. Employers must keep the agreement as a time and wages record and give the employee a copy. Eligible employees can continue to make flexible work requests under section 65 of the Fair Work Act 2009, subject to separate statutory requirements. Where a dispute regarding a working from home request arises under the Clerks Award, it may be dealt with under clause 40–Dispute resolution.

What employers should review

The new clause applies from an employee’s first full pay period starting on or after October 26.

We recommend employers a review the following:

• Current working from home arrangements for employees covered by the Clerks Award, including any informal arrangements they wish to document
• Policies and procedures relating to flexible working arrangements or working from home
• Template agreements, including how they record the agreed work pattern and how arrangements can be changed or ended

Employers should consider each request on its individual merits, taking into account the operational requirements of the business and the nature of the role being performed.

Important considerations for your workplace policies

Employers may wish to adopt a risk-based approach when assessing requests in line with a relevant working from home policy.

Factors such as the employee's level of experience, training requirements, performance history and the degree of collaboration required within the role may all be relevant considerations.

For example, where an employee is experiencing performance concerns, employers should consider if the employee can continue to receive appropriate support, supervision and feedback while working remotely. In some circumstances, it may be reasonable to determine that a period of closer supervision or additional training is required before a working from home arrangement can be implemented or reinstated.

Similarly, if an employee is within their probation period, employers may consider whether regular attendance in the workplace is necessary to support onboarding, training, integration with the team and performance assessment. While probation alone should not automatically prevent a working from home arrangement, employers may take the view that in-office attendance is appropriate during the early stages of employment where it supports the employee's successful development in the role.

It’s best practice that employers give each request genuine consideration and base their decision on legitimate operational reasons and the circumstances of the employee.

Need support understanding how the change may apply to your business?

Our Employee Relations Helpline can help you understand how the new provision applies to your workplace and assist you in reviewing your working from home policies and arrangements.

Get in touch with our employee relations specialists today at on 08 9365 7660 or email [email protected].