01 October 2024

The Fair Work Commission (FWC) has commenced a new major case to develop a working from home (WFH) term in the Clerks—Private Sector Award 2020.

A provisional list of issues to be considered in the major case was published by the FWC which includes:

• How should WFH be defined?
• Should a WFH term include the right for employees to request WFH arrangements? If so:
  • In what circumstances should this right be available?
  • When can an employer refuse a request?
• What modifications are needed for the following provisions in the Clerks Award to remove existing impediments to WFH arrangements?
  • Spread of ordinary hours (clause 13.3)
  • Continuous ordinary work hours (clause 13.6(a))
  • Employer discretion over ordinary work hours (clause 13.6(b))
  • Maximum ordinary hours per day (clause 13.7)
  • Breaks (clause 15)
  • Allowances (clause 19)
• How will overtime obligations (clause 21) operate with a WFH term?
• How will overtime hours be authorized and recorded?
• Should the WFH term apply to all employee classifications under the Clerks Award or only specific groups?
• How will a WFH term interact with the right to disconnect (s 333M of the FW Act and clause 13A10 of the Clerks Award)?

A directions hearing was held on the 15^th of September to hear submissions concerning this provisional list and the timetabling of the case and a final list of issues is expected to be published shortly.

The FWC will then proceed to conduct a review of the issues on this list and will develop a WFH term for the Clerks award based on their findings.

It is anticipated that this term will be used as a model term when updating for WFH arrangements in other awards.

As we all know, WFH increased dramatically due to the COVID-19 pandemic and has become a permanent feature of working arrangements in many industries and occupations.

In recent times there has been controversy around WFH arrangements with differing views around when and how it should be permitted.

It is hoped that this case will result in a commonsense approach that will allow employers and employees to better navigate the issues to underpin productive WFH arrangements.

We will keep you posted on developments as the case progresses. to help employers and employees get up to speed.

Sky Accountants Ballarat

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