Statement from Innes Willox, Chief Executive, Australian Industry Group
Australian Industry Group welcomes today's decision of the Fair Work Commission to make the Clerks – Private Sector Award 2020 more flexible and adaptable to contemporary working arrangements.
This gives employers and employees greater ability to agree on arrangements that suit their circumstances, instead of requiring that they work in accordance with outdated and prescriptive rules around working hours that are blatantly out of step with practical realities of the way people want to work.
We are pleased that the Commission has largely adopted the approach advanced by Australian Industry Group in the Clerks – Working From Home case.
We argued that widespread working from home arrangements have developed which are consensual, mutually beneficial and inconsistent with the current provisions of the Clerks Award. The Commission has accepted this proposition.
The Commission rightly accepted that the relevant provisions of the Clerks Award were established in a different era, when workplace attendance and more highly supervised and regimented systems of work were the norm. Those provisions were not designed for the flexible working arrangements that are now commonplace.
Ultimately it rightly held that a new regulatory intervention is not required to compel employers to facilitate working from home in a wider range of circumstances.
The historic decision also provides powerful vindication for industry agreements that there is simply no need for further legislative intervention in this area, including the Victorian Government's proposals to introduce new rights to request working from home.
The Victorian proposals appear directed at addressing a problem which the evidence before the Commission suggests doesn't exist in the clerical and administrative sector. Employers and employees already negotiate and implement working from home arrangements on a widespread basis, and most requests are accommodated.
The Commission has adopted, in large part, our proposal to provide greater flexibility to employees and employers adopting agreed working from home arrangements.
We argued that the existence of widespread working arrangements which are accepted by employers and employees but technically inconsistent with applicable award provisions bring the system into disrepute and that awards need to reflect contemporary circumstances, rather than standing in the way of arrangements that are working successfully in practice.
The Commission has agreed with the substance of this position, despite vehement opposition from unions.
This demonstrates the importance of the Commission as the independent umpire to develop a fair, relevant and sustainable modern award system.
In rejecting the unions' proposed new right to work from home, the Commission found that working from home arrangements are now widespread to the extent that they may be considered an entrenched feature of employment in the clerical and administrative sector. It also found that most employee requests for working from home are approved in whole or in part.
Crucially the Commission also found that the evidence did not support the union proposition that employers are, to any significant degree, refusing working from home requests on arbitrary, capricious or discriminatory grounds. Where requests are refused, the grounds given are reasonably related to the legitimate business interests of the employer.
Where arrangements cannot be agreed, employers are generally making decisions based on legitimate business considerations rather than arbitrary or discriminatory grounds.
Governments contemplating further interventions in working from home should carefully consider the Commission's findings. They demonstrate the value of allowing employers and employees to negotiate arrangements that reflect the legitimate needs of their particular workplaces, rather than imposing a prescriptive, one-size-fits-all entitlement.
It is however concerning that the Commission has not been able to adopt all of the flexibilities employers had called for given recent legislative amendments that were supposed to be directed at protecting penalty rates, but which now appear to prevent the Commission from allowing employers and employees to reach agreement on working ordinary hours at times that may suit employees.
The Government's changes to the Fair Work Act determined what terms and conditions are fair and relevant to contemporary workplaces. It would mean, for example, that arrangements implemented during Covid which allowed employers to let employees work outside the normal spread of ordinary hours to suit their circumstances could not be implemented again.
It was well understood by industry that the Government did not intend the Fair Work Act changes to limit the ability of the Commission to facilitate working from home arrangements. Yet the practical effect of those changes has been to constrain the Commission's ability to determine, impartially, how much freedom employers and employees should be given to determine working from arrangements that suit them.
This is a worrying outcome given it will set in stone elements of outdated elements of the award system. This is an unintended consequence of the Government's amendments to the Fair Work Act that should be addressed as a priority.
Despite this constraint, the Commission has made a worthwhile and practical improvement to the Clerks Award, an important step towards modernising the modern award system and ensuring that awards remain capable of adapting to the way Australians actually work.
Our modern award system needs to keep pace with contemporary circumstances. It should facilitate rather than frustrate the ability of employees and employers to agree mutually beneficial working arrangements that genuinely suit their circumstances. Today's decision is a worthwhile step in that direction.
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