Fair Work overreach? WFH could soon become a legally enforceable right for workers

The Fair Work Commission (FWC) is undergoing hearings on its initiative to develop a working-from-home term in the Clerks – Private Sector Award 20202 (Clerks Award). Could employers be “held to ransom” over WFH arrangements?

Working from home (WFH) may no longer be at the volition of Australian employers, as the FWC has announced that it would begin proceedings on its initiative to consider and determine variations of modern awards in a total of six areas, one of which being the development of a WFH term in the Clerks Award.

The FWC said: “This proceeding is concerned with the development of a working-from-home term in the Clerks Award, which ‘facilitates employers and employees making workable arrangements for working at home and removes any existing award impediments to such arrangements’.”

It was also acknowledged that there was a consensus among parties in the Modern Awards Review 2023–24 report “that modern awards should be varied to deal with working-from-home arrangements and an acknowledgement of the importance of working-from-home arrangements to support workers with caring responsibilities”.

The first hearing will begin on 13 September 2024.

As the announcement from the FWC circulated throughout online forums, immediate criticisms flooded the timeline, with the consensus being that it was an overreach from the commission.

Coming off the back of new workplace regulations derived from the “Closing Loopholes” legislation, a general sense among employers may be that the “walls are closing in”.

This sentiment was echoed by Employment Hero chief executive Ben Thompson, who labelled the controversial Right to Disconnect as one of the many regulations that are “tightening the noose around the neck of SMEs”.

Although most of the commentary on this matter was depicted on the side of the employer, Paul O’Halloran, partner and head of office at Dentons, believes the FWC is leaning into the opinion of workers who are yearning for greater autonomy and control of their hours.

“It’s pretty clear that the Fair Work Commission is leaning into the sentiment expressed by a large percentage of the Australian workforce who want greater autonomy and control over their working hours. I think post-pandemic, employees feel WFH is a right, not a discretion to be exercised at the whim of employers.

“On the other hand, however, employers are being hit by so many changes to the laws at the moment that it’s hard to keep up with the amount of regulatory change, none of which translates to productivity gains for employers. So, it’s understandable that employers are thinking they have the raw end of the stick,” said O’Halloran.

The fixation with flexibility has certainly increased since the COVID-19 era and makes this decision by the FWC that much more monumental. This “tug of war” affair that we’ve seen between employees and employers post-pandemic has primarily been a case-by-case basis, except for Premier Chris Minns’ decision to recall public servants back to the workplace.

In this case, the FWC is waving the stick that could draw a line in the sand, handing the authority to the employees.

Wesley Rogers, head of workplace relations at Marque Lawyers, believes that adding WFH to the Clerk Award could “change the landscape”.

“Although WFH arrangements have become part of many workplaces, particularly coming out of the pandemic, adding WFH rules to modern awards, starting with the Clerk Award, has the potential to change the landscape,” said Rogers.

“We are particularly interested in how the FWC intends to balance the reasonable circumstances in which a WFH request can be made by an employee or refused by an employer. Regarding the latter, reasonable grounds for refusal need to go beyond tangible business or operational considerations; the traditional view of ‘reasonable business grounds’.”

Rogers also referred to the post-pandemic climate, highlighting that some employers have actively accommodated WFH arrangements, but others long for the physical presence of their workers, which they believe positively impacts workplace culture.

“Coming out of the pandemic, many employers have shown that on pure practical terms, they have the ability to accommodate WFH arrangements, and those arrangements don’t necessarily have an adverse effect on productivity, revenue, or service levels,” he said.

“There are, however, employers that see value in employees [having] a physical presence at the workplace that goes beyond what is best the business’ bottom line.

“Some employers see the physical workplace and employee attendance as critical to their culture, including building connections, promoting collaboration or creativity, or providing effective support or career progression.”

Rogers posed a final question that alludes to a deeper outlook on the situation instead of a tunnel-visioned point of view.

“In our view, WFH rules and considerations need to take into account matters that go beyond the simple question ‘can it be done?’” he said.