STATEMENT

Fair Work Act 2009
s.157—FWC may vary etc. modern awards if necessary to achieve modern awards objective

Clerks—Private Sector Award 2020
(AM2020/98)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 19 FEBRUARY 2021

Clerks—Private Sector Award 2020–work from home case–future programming–conference listed.

[1] On 28 March 2020 the Commission issued a decision (the March 2020 Decision) granting a joint application filed by the Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI) and supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU), to insert a new schedule, ‘Schedule I-Award flexibility during the COVID-19 pandemic’, into the Clerks – Private Sector Award 2020 (the Clerks Award). The new schedule came into operation on 28 March 2020 and was to cease to operate on 30 June 2020, unless extended.

[2] Since the March 2020 Decision the Commission has granted four applications to extend the operation of Schedule I. 1 The current version of the Schedule is due to cease operation on 30 June 2021.

[3] At the conference on 17 December 2020, the parties requested a conference in mid- February 2021 to continue discussions in relation to the form of any future award term dealing with working from home.

[4] In a statement issued on 11 February 2021 2, interested parties were asked to confirm whether the conference is still required.

[5] On 18 February 2021, Ai Group wrote to the Commission on behalf of each of the interested parties (Ai Group, ACCI, ACTU and ASU) and confirmed that the proposed conference in mid-February is not necessary. The parties jointly proposed that the matter be relisted after 22 March 2021, for the purpose of discussing the potential future programming of the matter. The purpose of the delay is to enable the parties to give further consideration to the form of any further potential variation in light of evolving circumstances.

[6] A conference will be listed at 9:30am on Wednesday 31 March 2021. Parties wishing to appear at the conference are to provide the name, direct number and organisation by 4 pm on Monday 29 March 2021 to [email protected]. A notice of listing will be issued separately.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2020] FWCFB 3443, [2020] FWCFB 5199, [2020] FWCFB 6078, [2020] FWCFB 6985

2 [2021] FWC 703

CaseChat Overview and Summary

In the recent decision of Clerks—Private Sector Award 2020, the Fair Work Commission (FWC) addressed a dispute concerning work arrangements for employees in the private sector. The case involved the application by the Australian Retailers Association to modify existing award conditions to allow for flexible work arrangements, including working from home. The matter was brought before the FWC to determine whether such arrangements could be implemented without violating existing award provisions.

The central legal issue before the FWC was whether the proposed changes to the award conditions, which aimed to facilitate flexible work arrangements, were consistent with the objectives and principles of the Fair Work Act 2009. The FWC had to consider whether such changes would adversely affect the rights and protections afforded to employees under the Clerks—Private Sector Award 2020. Specifically, the FWC needed to assess whether the proposed changes would result in a reduction of employees' ordinary hours of work, pay, or entitlements, and if so, whether any such reductions could be justified.

The FWC examined the evidence presented by both parties and considered the broader implications of implementing flexible work arrangements. The FWC found that while the proposed changes could provide benefits to both employers and employees, they needed to be carefully managed to ensure that they did not undermine the protections enshrined in the award. The FWC concluded that the proposed changes could be implemented provided that certain conditions were met, such as maintaining minimum hours and pay, and ensuring that employees had access to necessary tools and support to perform their work effectively. The FWC also noted that any changes would need to be subject to ongoing review to ensure they did not adversely affect employees' rights and protections.

The FWC issued a determination that allowed for the implementation of flexible work arrangements, including working from home, subject to specific conditions. These conditions included maintaining minimum hours and pay, providing necessary tools and support, and ensuring ongoing review of the arrangements. The decision emphasised the importance of balancing flexibility with the need to protect employees' rights and entitlements under the award.

Clerks—Private Sector Award 2020

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established