Potential implications of the proposed WFH Clerks Award clause

With the Australian Services Union (ASU) attempting to add a WFH clause to the Clerks Award, one expert has said that, if successful, this case may be a precedent for other awards.

In a case currently before the Fair Work Commission, the ASU is attempting to add a clause to the Clerks – Private Sector Award 2020, which will make working from home for some days in the week a right for workers under the award.

As previously reported by HR Leader, employers and unions have been fighting for change under the award for some time now. These changes could impact approximately 1.8 million workers who are currently covered by the Clerks Award.

Inherent right to WFH?

In light of this case, Swaab partner Michael Byrnes (pictured, left) said the Westpac decision last year has made many workers believe that they have an inherent right to work from home. However, he emphasised that employers have the right to require employees to work from the office.

“The ASU has taken the practical and interesting step of seeking that the Clerks Award be varied to provide employees covered by that award a presumed right to work from home when reasonably requested,” Byrnes said.

In addition, there is a 26-week notice period for employers looking to mandate a return-to-office.

“It constitutes a reversal of the usual position where permission to work from home is generally a matter of employer prerogative (subject to considerations relating to individual employees such as contractual rights or the right to request flexible working arrangements, including work from home),” Byrnes said.

Potential spreading impacts

Byrnes noted that if passed, this reform will only apply to the Clerks Award; however, he highlighted that if the ASU is successful with its case, “it can be expected that other unions will make similar applications to seek to have the clause (or a variation of it) inserted into other awards”.

“The insertion of such clauses in awards might lead to employers needing to take a different approach for various groups of employees in the organisation – while award-free employees may be ordered to work from the office/workplace, certain award-covered employees may be able to resist such a mandate,” Byrnes said.

If employers adopt “the same rights as those in the awards containing the WFH clause, it might turn out to be a significant practical impediment to return to the office mandates for all employees, not just those covered by the relevant awards,” Byrnes said.

ASU national secretary Emeline Gaske (pictured, right) said that these proposed amendments are “more than just where to work” but laws that will reflect the lives of employees. Gaske noted that working from home is an “essential lifeline” allowing workers to balance “complex caring responsibilities” and “community commitments”.

“When we accommodate work/life balance, society benefits. Families have more quality time, local communities thrive as people spend more time in their own backyards, and we build a more inclusive workforce that doesn’t force people to choose between a career and their personal wellbeing,” Gaske said.