Variation on the Commission’s own initiative — Clerks—Private Sector Award 2020
[2024] FWCFB 407
•24 OCTOBER 2024
| [2024] FWCFB 407 |
| FAIR WORK COMMISSION |
| STATEMENT AND DIRECTIONS |
Fair Work Act 2009
s 157—FWC may vary etc. modern awards if necessary to achieve modern awards objective
Variation on the Commission’s own initiative — Clerks—Private Sector
Award 2020
(AM2024/34)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 24 OCTOBER 2024 |
Proposed variation on the Commission’s own initiative – working from home – Clerks—Private Sector Award 2020 – list of issues – timetabling – research.
This matter has been commenced by the Commission on its own initiative pursuant to s 157(3)(a) of the Fair Work Act 2009 (Cth) (FW Act). In a statement issued on 29 August 2024[1] (Statement) we explained the background to the matter and the historical context pertaining to the working from home arrangements under the Clerks—Private Sector Award 2020 (Clerks Award) and stated our provisional view as to the issues which would arise for determination. The identified issues were:
(1)Are variations to the Clerks Award to include a ‘working from home’ term necessary to achieve the modern awards objective in s 134 of the FW Act?
(2)How should ‘working from home’ be defined?
(3)Would an appropriate ‘working from home’ term include a right for employees to request working from home arrangements? If so, in what circumstances should a right to request be available and in what circumstances would a request be able to be refused by the employer? Alternatively, should such a clause be facilitative in nature only?
(4)In the [Modern Awards Review 2023–24] Final Report at [167(4)], the Full Bench indicated its intention for a ‘working from home’ term to remove existing award impediments to working from home arrangements. What, if any, modifications of the provisions of the Clerks Award dealing with:
(a)the spread of ordinary hours (clause 13.3);
(b)continuous ordinary work hours (clause 13.6(a));
(c)the requirement for ordinary work hours to be worked at the discretion of the employer (clause 13.6(b));
(d)the maximum number of ordinary hours per day (clause 13.7);
(e)breaks (clause 15); and
(f)allowances (clause 19)
should be considered in developing an appropriate ‘working from home’ term to give effect to this intention?
(5)How will the employer’s obligations in respect of overtime under clause 21 operate alongside a ‘working from home’ term? In particular, how will the working of overtime hours be authorised and recorded?
(6)Should the ‘working from home’ term apply to all classifications or groups of employees covered by the Clerks Award, or only some?
(7)How would a ‘working from home’ term interact with the right to disconnect in s 333M of the FW Act and clause 13A of the Clerks Award?
(8)Are there any other matters that should be considered in a ‘working from home’ term?
The Statement also indicated that the presiding member would conduct a hearing on 13 September 2024 to hear any submissions as to the provisional list of issues and the timetabling of the matter.
On 11 September 2024, prior to the hearing, lawyers for Australian Business Industrial and Business NSW (ABI) sent correspondence identifying the following two additional issues for consideration in the proceedings:
1.Our clients consider that the proceedings should consider the interaction between award terms and employees working remotely. That is, the proceedings should not be limited to considering award terms and their interplay with circumstances when employees are working from their residential home only. It is possible that this matter can be addressed together with Issue 2 in the List of Issues identified in the Statement.
2.Our clients request that the interplay of minimum engagement clauses with remote working be added to the list of specific clauses to be considered as part of Issue 4. In the Clerks—Private Sector Award 2020, the relevant minimum engagement clauses are contained at:
a. Clause 10.5; and
b. Clause 11.4.
At the hearing on 13 September 2024, the Australian Industry Group (Ai Group) submitted that minimum engagement periods prescribed by the Clerks Award should be added to the list of provisions to be considered under issue (4) in the Statement. ABI affirmed the position stated in its correspondence of 11 September 2024. The Australian Services Union (ASU) opposed the position of the Ai Group and ABI, and proposed that two additional questions be added to the list of issues. As confirmed in correspondence sent to the Commission after the hearing on 13 September 2024, these proposed additional questions were:
1.Is there any distinction between circumstances where an employee chooses to work from home and circumstances where they are required to work from home by their employer? Should different provisions apply to each of those circumstances? If so, what are they?
2.Is there any need to consider provisions addressing privacy, surveillance and safety while working from home?
The ASU’s position was supported by the Australian Council of Trade Unions (ACTU). Finally, the Australian Retailers Association (ARA) submitted that, pursuant to issue 4, consideration should be given to whether the weekly clothing and footwear allowance of $3.55 for full-time employees should be changed to a ‘per occasion’ allowance when working at home.
As to the timetabling of the matter, the general consensus of the parties was that, because of the range of other major proceedings currently before the Commission, they should not be required to file their material prior to March 2025. Parties further requested a period of about eight weeks for material in reply.
The presiding member also raised with the parties the question of whether the Commission should, on the basis of a consensus of the parties, undertake a survey of employees ‘that might touch upon some of the issues about the way people actually do work at home and the way they prefer to work at home’.[2] No party opposed this, with the Ai Group suggesting that a survey of employers might also be of utility and the ASU proposing in addition that a data profile of employees covered by the Clerks Award might reduce the evidentiary burden on parties.
List of issues
We are not presently persuaded that we should alter the list of issues contained in the Statement. The issue of the minimum engagement period for part-time employees generally will, we anticipate, be a major issue in the review of part-time employment which the Commission intends to initiate in 2025, and we do not wish to pre-empt the outcome in these proceedings. In respect of the minimum engagement period for casual employees, we do not consider that it should be determined in advance of the issue of the minimum engagement period for part-time employees. As to the issue raised by ABI concerning remote working, this appears to be beyond the scope of the proceedings. It may in any event arise for incidental consideration in relation to the issue of defining ‘working from home’ (issue (2)).
The ASU’s first proposed question also appears to pre-empt the determination of issue (3), although it may conceivably arise at some stage of the proceedings. As to the ASU’s second proposed question, the matters identified do not appear to fall within those prescribed by s 139(1) of the FW Act about which awards terms are permitted to be made. These matters are also generally dealt with in separate legislation. The issue raised by the ARA concerning the clothing and footwear allowance is not of sufficient significance to be identified in the list of issues, although it may arise as an ancillary matter.
We confirm the list of issues contained in the Statement. We emphasise that the list is intended to focus attention on what we consider to be the likely key issues in the matter, but is not intended to definitively close off any case which a party may wish to advance that is reasonably connected to the subject matter of working from home (as the inclusion of issue (8) was intended to make clear).
Timetabling
We make the following directions:
1.Interested parties shall file any proposals for a working from home clause, submissions and the evidence upon which they wish to rely by 4:00 pm (AEDT) on Friday, 28 March 2025.
2.Interested parties shall file any submissions and evidence in reply by 4:00 pm (AEST) on Friday, 23 May 2025.
The matter will be listed for further directions and programming by video-link using Microsoft Teams at 9:30 am (AEST) on Friday, 6 June 2025.
Research
In relation to the issue of any research to be undertaken by the Commission, the Commission’s Labour Standards Support Branch has identified four options for research, which are set out in Attachment A. Commissioner McKinnon will convene a conference of the parties to ascertain whether consensus can be reached as to any of these research options. Parties at that conference may in addition raise any additional research options which they consider may be appropriate and practicable for consideration. The final form of the research will also be informed by timing and budgetary constraints. The Commissioner’s chambers will advise parties of the time, date and location of this conference.
PRESIDENT
ATTACHMENT A — RESEARCH OPTIONS
Option 1 ― Clerks Award data profile
Commission staff can prepare a short ‘data profile’ for the Clerks Award. This data profile would present statistical information but would not involve additional research into employer and/or employee preferences or conduct. Using a combination of the Australian Bureau of Statistics (ABS) Survey of Employee Earnings and Hours (EEH) microdata (May 2023), the ABS Census (August 2021) and various Australian data sources on working from home, information in a data profile could include the following:
·characteristics of employees under the Clerks Award;
·characteristics of employers using the Clerks Award;
·indicative ANZSCO classifications for workers under the Clerks Award;
·prevalence of working from home and other flexible working arrangements as outlined in Table 1 (where data is available; and noting that it is not possible to disaggregate these data to the level of employees under the Clerks Award as identified in the EEH).
Table 1: Australian work from home (WFH) data sources
| Source | Timespan | WFH variables | Other WFH variables | Sample size | Availability |
| HILDA | Annual (from 2002) | Hours WFH; Number of hours usually WFH; if WFH hours are through a formal arrangement | Distance of job from home; satisfaction with flexibility to balance non-work commitments | ~10,400 employed people in 2022 | Release 22 available to Commission staff |
| ABS Characteristics of Employment | 2-yearly (last collected August 2023) | Whether had flexible working agreement; whether usually WFH; main reason for WFH | N/A | ~32,000 employed people in 2023 | Able to generate custom cross-tabulations of multiple variables |
| ABS Household Impacts of COVID-19 survey | 9 data points between Apr 2020 and Apr 2022 (irregular frequency) | Whether WFH (all or most days, at least once a week, at least once in last month) | N/A | ~1,450 employed people in April 2022 | WFH variables by age and sex only – cannot be combined |
A similar data profile for pharmacists was prepared and published in the Gender undervaluation – priority awards review matter. A Work and Care Data Profile was also published as part of the Modern Awards Review 2023–24. While analysis was not confined to the Clerks Award, the Work and Care Data Profile included data relating to working from home, flexible hours and start/finish times, job share arrangements and part-time work. The analysis presented in the Work and Care Data Profile may be updated for this matter. It should also be noted that the EEH data may require approval from the ABS for publication which may impact the extent to which the request on data regarding the Clerks Award can be accommodated. The Commission will not be able to confirm this until the data are analysed.
Option 2 — Adapted survey of employers covered by the Clerks Award
Commission staff previously conducted a survey of 123 employers covered by the Clerks Award between 26 November and 24 December 2020. This research addressed an identified ‘evidentiary gap’ concerning the incidence of working from home arrangements among employees covered by the Clerks Award and the extent to which Schedule I―Award flexibility during the COVID-19 pandemic was being utilised. Among questions specific to the COVID-19 pandemic, the survey also canvassed:
·employee/employer characteristics;
·number of the employer’s employees covered by the Clerks Award;
·number of employees working from home since 1 July 2020;
·employers’ working from home policies;
·number of employees who changed their hours of work;
·reasons for different working arrangements;
·impediments to working from home; and
·reasons employees were required to work at the workplace.
The 2020 employer survey was administered by Commission staff via an online platform. Survey questions were distributed by the ACCI and the Ai Group to relevant members of each organisation. This survey could be run again, removing questions that relate to the COVID-19 pandemic and/or Schedule I. This approach presents an opportunity to compare the data collected in this round to previous data collected in 2020. It is suggested that if the survey was run again, a third party should be engaged to collect and analyse data.
Option 3 ― Qualitative research concerning employee preferences
This approach proposes to conduct qualitative research into the working from home preferences and/or experiences of employees covered by the Clerks Award. This research approach responds to identified challenges engaging employees at a scale necessary for reliable quantitative analysis, instead focusing on interviews or focus groups with a sample of employees reliant on the Clerks Award.
Qualitative research collects detailed, narrative-driven data and would be able to provide insights into employees’ working from home practices. Research would focus on collecting information on employee behaviours and preferences, for example why employees are selecting working from home or individual barriers faced when requesting to work from home and/or working from home over a long period. This approach could be conducted in conjunction with Option 2 above as the data collected would complement employer survey data.
Option 4 ― Survey about list of identified issues
An alternative research option is to develop a survey which utilises the issues identified by the Full Bench in its 29 August 2024 statement as a foundation for questions. It may be relevant to focus on the following questions/issues:
(2)How should ‘working from home’ be defined?
(4)What, if any, modifications of the provisions of the Clerks Award dealing with:
(a)the spread of ordinary hours (clause 13.3);
(b)continuous ordinary work hours (clause 13.6(a));
(c)the requirement for ordinary work hours to be worked at the discretion of the employer (clause 13.6(b));
(d)the maximum number of ordinary hours per day (clause 13.7);
(e)breaks (clause 15); and
(f)allowances (clause 19).
(5)How will the employer’s obligations in respect of overtime under clause 21 operate alongside a ‘working from home’ term? In particular, how will the working of overtime hours be authorised and recorded?
(6)Should the ‘working from home’ term apply to all classifications or groups of employees covered by the Clerks Award, or only some?
To better target each group, this research may also be adapted for separate employer- and employee-level surveys.
[1] [2024] FWCFB 357.
[2] Transcript, 13 September 2024 PN79.
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