Private Sector Award update ‘a huge step forward for workers’ rights’

A new clause in the Clerks Award will give hundreds of thousands of administrative workers the right to request working-from-home arrangements, but the ruling has not been unanimously celebrated.

In a decision handed down on 27 August, the Fair Work Commission (FWC) declared that all workers covered by the Clerks – Private Sector Award will be able to request to work from home, regardless of personal circumstances.

The clause is a first-of-its-kind structural update to a modern award.

The commission first announced the development of a working-from-home term in August 2024. At the time, it explained that “the term is intended to be one which facilitates employers and employees making workable arrangements for working at home and removes any existing award impediments to such arrangements”.

As reported, the Australian Industry Group (AIG) requested greater employer flexibility in a submission to the proposed clause, which would have reduced pay entitlements for working overtime at home.

Unions such as the Australian Services Union (ASU) pushed back on this sentiment, with ASU assistant national secretary Scott Cowen stating: “Working from home shouldn’t come with a pay cut, and we are calling on the commission to protect workers’ fundamental rights to overtime, penalty rates, and breaks, regardless of where they work.”

The new clause was confirmed by the full bench consisting of Justice Adam Hatcher, deputy president Bernadette O’Neill, and commissioner Sarah McKinnon.

As the main union campaigner, the ASU has called the ruling a historic and significant win for workers.

ASU national secretary Emeline Gaske said: “For the first time, every worker covered by the Clerks Award has the right to ask to work from home and not just those that the law specifically protects, like people with disabilities or carers.

“That matters enormously for our professional and administrative members, who have been asking for this for years. It gives flexibility to workers, especially working women who are more likely to be juggling work, caring or other responsibilities alongside their day jobs.”

The union further explained that the decision will protect workers’ autonomy over their working arrangements and prevent employers from applying pressure or direction one way or the other.

Gaske said: “This is a right that workers have fought for in the face of bullying tactics by big business groups. Despite powerful lobby groups calling for workers to have to forfeit their entitlements, including penalty rates and overtime, in order to request the right to work from home, workers have shown up, fought to maintain their rights in full, and they’ve won.”

In its statement, the ASU also acknowledged the financial benefit of working from home in the midst of a cost-of-living crisis, as well as potential lifts to productivity, but noted that more consideration needs to be given to the right to work from home.

Ahead of the change, Swaab workplace lawyer Michael Byrnes explained that the proposal “constitutes a reversal of the usual position where permission to work from home is generally a matter of employer prerogative” and, if passed, will likely motivate other unions to make similar applications.

Reflecting on the decision, the Housing Industry Association (HIA) praised the commission’s rejection of union calls for a mandated right to work from home, calling the newly introduced clause unnecessary.

According to HIA director workplace relations Natalie Cameron, the addition “to an already lengthy and complex award risks creating more complexity without addressing an identifiable problem”.

“Working from home can work well when it is genuinely negotiated between an employer and employee and reflects the practical circumstances of the business,” she said.

Cameron cited FWC research that found 88 per cent of employers and 85 per cent of employees did not consider the change necessary to make WFH more accessible, adding: “The commission also found no evidence employers were systematically refusing WFH requests, while the Productivity Commission has separately concluded the existing Fair Work Framework is appropriate and there is no demonstrated need for legislated WFH rights.”

“You don’t regulate your way to better workplace relationships when there is no identifiable problem to fix.”

The ASU continues to push for nationwide working-from-home protections and rights, with Gaske explaining that “this decision doesn’t yet give all workers a nationally recognised right. It doesn’t describe what protections workers have while working from home.”

“This is an important victory today, but it isn’t the finish line,” she said.

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