Clerks WFH provision takes effect – how big of a deal is it?

While the latest and first-of-its-kind award update appears to simply facilitate a remote working conversation, one lawyer is warning employers to consider potential impacts on management, contracts, and policy.

Further to the landmark update to the Clerks – Private Sector Award, handed down by the Fair Work Commission on 27 August, HR Leader spoke to Kingston Reid Brisbane special counsel Natasha Duff to explore the significance of the update and the implications for management.

Duff clarified that the new provisions do not proscribe an automatic right to work from home, but a facilitative means to open conversations between employees and employers – which nevertheless reflect a significant change in hybrid work legislation.

She said: “They do have practical significance in that they allow employers and employees to agree to vary how ordinary hours are worked and when breaks are taken, providing a clearer framework for the hybrid and work-from-home arrangements many workplaces already have.

“The provisions operate from 26 October; where they are relied upon, requests must be made in writing, and agreements must be documented with specified content, kept as time and wages records with a copy given to the employee.”

With regards to existing provisions, Duff explained that the addition will operate alongside existing mechanisms and that eligible employees can still make flexible working requests under section 65 of the Fair Work Act 2009 (Cth). This means employers still cannot refuse requests except on a reasonable business ground.

Duff noted that clause 5A is broader in reach as it applies to any employee covered by an award – but that it does not proscribe the reasonable business ground for determination.

She said: “For employers covered by enterprise agreements, the new provisions will not apply while the agreement operates, but will form part of the benchmark for the better off overall test when a replacement agreement is negotiated.”

Duff said there may be further or similar provision additions in the future, given the growing prevalence of working from home.

When it comes to working from home, an employer’s primary duty is to ensure “so far as is reasonably practicable” the health and safety of workers. In this way, employers not yet familiar with remote work management should be aware of additional responsibilities, such as the consideration and approval of work location, breaks, and risks from improper ergonomic or psychosocial risk management.

In this way, Duff offered work health and safety (WHS) self-assessment checklists and regular check-ins as two practical solutions for management overwhelmed or unsure of where to begin.

For those already managing hybrid work, Duff said the priority should be on existing employment contracts and policies.

Accepting that the provisions do not contradict any existing contracts, she did encourage employers to “check whether their policies are incorporated into contracts, as this may affect how those policies can be updated”.

However, she added: “The focus should instead be on updating work-from-home and WHS policies to clearly define what counts as ‘working from home’, including whether a location other than the employee’s residence can be approved, and to set out the request and approval process and safe work set-up obligations.”

Duff also encouraged employers to ensure the request is in writing, respond promptly and again, in writing, find out what is being requested, and agree on the details before the arrangement starts.

These steps, and ensuring management is aware of the new provisions, including how to handle and document requests, will ensure consistency and alignment with the new provisions.

Duff said: “Make sure any agreement is reached without pressure or coercion, apply decision making consistently across the workforce, and review arrangements periodically to confirm they continue to meet both the employee’s and the business’s needs.”

Want to see more stories from trusted news sources?
Make HR Leader a preferred news source on Google.