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)

Clerks-Private Sector Award 2020–work from home case–parties request that the case be discontinued–provisional view expressed–objections filed–hearing to proceed–directions amended.

[1] On 28 March 2020 the Commission issued a decision 1 (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. 2 The schedule is due to cease operation on 30 June 2021.

[3] The schedule provides for flexibilities in relation to employees working from home and includes:

•  a definition of remote work

•  an extended span of hours for employees working remotely

•  a provision allowing employees to elect to work their hours in a non-continuous manner while undertaking remote work

•  a provision allowing part-time employees to select their own starting and finishing times when undertaking remote work, with agreement from their employer, and

•  flexibility in relation to the taking of meal or rest breaks by employees undertaking remote work, subject to agreement with the employer.

[4] The schedule also provides flexibilities in relation to a temporary reduction in ordinary hours of work and the taking of annual leave.

[5] The schedule includes the following safeguards:

•  in effect, disputes about the operation of Schedule I can be dealt with by the Commission, by arbitration, and

•  any direction or request given by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable.

[6] The current Schedule I is attached to this decision.

[7] In a decision on 6 October 2020 3, the Full Bench said:

‘… the terms of Schedule I reflect the extraordinary circumstances arising from the restrictions imposed to contain the COVID-19 virus. The restrictions are now easing but the direct economic and social impacts of the pandemic will be felt for some time to come. It also seems likely that there will be a continuing need for flexible work arrangements to assist employers and employees in adapting to the changed conditions and to support the recovery. The facilitation of agreed working from home arrangements looms large in this context …

These circumstances suggest that there is a need to consider whether it is necessary to vary the Clerks Award to provide more enduring means of facilitating agreed working from home arrangements. The extension of Schedule I provides the parties with an opportunity to consider whether a more enduring solution is necessary and if so, the form of that solution…

We direct the ASU, ACTU, Ai Group and ACCI to confer in respect of the variations to the Clerks Award (if any) which are necessary to facilitate agreed working from home arrangements. In this regard we refer the parties to the model Flexibility Schedule attached to the President’s Statement of 31 August 2020 as a starting point for those discussions. We would also refer the parties to the updated Information Note on Working from Home published on 1 October 2020.

The Commission will convene a conference in the week commencing 9 November 2020 to receive a report on the discussions ...’

[8] Conferences were convened on 18 November and 17 December 2020. At a 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. Further conferences were listed in March and April 2021, but these were cancelled at the request of the parties.

[9] On 11 April 2021, the ACTU wrote to the Commission on behalf of the ASU, ACCI and Ai Group 4 and requested that the current proceedings be discontinued.

[10] Taking into account the views of the parties, we issued a statement 5 on 29 April 2021 expressing the provisional view that the matter should be discontinued. We also expressed the provisional view that Schedule I to the Clerks Award should not be extended and would therefore cease operation on 30 June 2021.

[11] Any interested party opposing our provisional views was invited to file a submission setting out their views by no later than 4pm on Friday 14 May 2021. Submissions were received from:

•  HR Central dated 14 May 2021

•  HR with Ease dated 29 April 2021

[12] Both organisations object to the provisional views and appear to seek to vary the Clerks Award by way of an extension to the operation of Schedule I.

[13] HR Central describe their business and their interest in the proceedings as follows:

‘as an HR company that provides advice and services to many small to medium business across Australia, we have a number of clients that come wholly under the Clerks Award or, at least, have a number of employees who do so.’

[14] The Managing Director of HR with Ease similarly describes herself as ‘an HR consultant working with a range of businesses who have a need to engage clerical and administrative staff in a flexible manner’.

[15] Section 158 Fair Work Act 2009 (Cth) (the Act) relevantly provides that an application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award may be made by:

(a) an employer, employee or organisation that is covered by the modern award; or

(b) an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

[16] Both HR Central and HR with Ease appear to be businesses providing HR advisory services. It is unclear whether either business is an employer operating under the Clerks Award. Neither business appears to be an organisation entitled to represent the industrial interests of employers or employees that are covered by the Clerks Award. 6 This may give rise to a question about whether these businesses are able to make an application to vary the Clerks Award. We are also unsure whether either business is an employer that is covered by a modern award. In order to deal with this potential technical impediment, we have decided to deal with these submissions as requests for us to consider acting on our own initiative pursuant to s.157(3)(a) of the Act.

[17] Both submissions object to the provisional views on similar grounds; that is that the current flexibility provided by Schedule I has been beneficial to businesses employing employees under the Clerks Award. HR Central submits that:

‘The current flexibility in the Clerks Award has been greatly appreciated by employees in particular, as it has provided significant flexibility for managing work commitments with other external obligations including caring responsibilities and other domestic issues.

One example of this is an employer that has a number of part time bookkeepers employed to service their customers. The majority of the employees are women. The employer only requires that the work be done, and their customers’ requirements are met as agreed. The employee has the freedom to do the work within their choice of hours of the day and in the blocks of time that suit them – that can be one hour or five hours, or anything in between. The flexibility of start and finish times cannot be underestimated, and the employer has found increased engagement and positive feedback from employees. Additionally, the employer is not looking to have employees come back to an office in the future, as the work is either done at home or at a client site, and the employees are fully supportive of this.’

[18] In the ‘Next steps’ section of this statement we deal with the filing of material prior to the hearing. Evidence that will be relevant to our consideration of whether to extend the operation of Schedule I will include the experiences of employers and their employees who are covered by the Clerks Award. Both HR with Ease and HR Central refer to businesses employing employees under the Clerks Award who have used the provisions of Schedule I. Witness statements from these employing businesses would assist us. Examples of the types of witness statements filed in applications to vary modern awards can be accessed on the Commission’s website. For assistance with the form of any witness statement, parties can contact amod@fwc.gov.au.

[19] It appears that the submissions of HR with Ease and HR Central are primarily concerned with clause I.2.1–Remote working arrangements. It would also assist us if HR with Ease and HR Central could confirm whether they are also seeking an extension of clauses I.2.2–Agreed temporary reduction in ordinary hours and I.2.3–Annual leave, or whether their primary interest is in the ‘working from home’ aspects of Schedule I.

Research

[20] We note that the following research has been published in this matter:

•  Research reference list updated in April 2021

•  Survey analysis for the Clerks-Private Sector Award 2020-work from home case published February 2021

•  Baird M and Dinale D (2020), Preferences for flexible working arrangements: before, during and after COVID-19, a report to the Fair Work Commission, November

•  Hopkins J and Bardoel A (2020), Key working from home trends emerging from COVID-19, a report to the Fair Work Commission, Swinburne University of Technology, November.

[21] We note that the research report from Professor Baird suggests that post-COVID-19 employees prefer a hybrid model of work, allowing them to work from home occasionally. The report from Dr Hopkins indicates that that many employers, employees, and their families, would likely benefit from working from home in the future. We will take this research into account in our consideration of this matter.

Next steps

[22] In the 29 April Statement, we said that if any submissions were filed opposing our provisional views, a hearing would take place at 9:30 am on Friday 21 May 2021.

[23] As the provisional views have been opposed by persons who have not been involved in these proceedings to date, we have decided to amend the timetable to provide additional time for filing further material prior to the hearing. We make the following directions:

1. Any interested party opposing the provisional views that the matter should be discontinued and that Schedule I should cease operation should file any further submissions or evidence in support of their views, including the duration of any proposed extension by 4:00pm (AEST) on Friday 28 May 2021.

2. Submissions and evidence in reply should be filed by 4:00pm (AEST) on Friday 11 June 2021.

3. A hearing will be listed at 9:30am (AEST) on Friday 18 June 2021.

4. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4:00pm (AEST) on Thursday 17 June 2021 to chambers.ross.j@fwc.gov.au. A notice of listing will be issued separately.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729931>

Schedule I–Award Flexibility During the COVID-19 Pandemic

I.1 The provisions of Schedule I are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic and not to set any precedent in relation to award entitlements after its expiry date.
I.1.1 Schedule I operates from 28 March 2020 until 30 June 2021. The period of operation can be extended on application to the Fair Work Commission.
I.1.2 Any direction or request given by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable in all of the circumstances.
I.1.3 An employer who issues a direction or makes a request under the provisions of Schedule I, or who makes an agreement pursuant to clause I.2.1, provides consent to a dispute about the direction, request or agreement being settled by the Fair Work Commission through arbitration in accordance with clause 40.5—Dispute resolution and section 739(4) of the Act.
I.2 During the operation of Schedule I, the following provisions apply:
I.2.1 Remote Working Arrangements

(a) Application of clause I.2.1

Clause I.2.1 applies when an employee is undertaking Remote Work as defined in clause I.2.1(b).

(b) Definition of Remote Work

For the purposes of clause I.2.1, Remote Work means work undertaken by an employee from their home or any other location of their choosing that is not the premises of their employer.

(c) Extended spread of ordinary hours for day workers

(i) Instead of clause 13.3, if an employee engaged on day work is undertaking Remote Work by agreement with their employer and the employee requests and the employer agrees, the spread of ordinary hours of work for the day worker may be between 6.00 am and 10.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.
(ii) Day workers are not shiftworkers for the purposes of any penalties, loadings or allowances under the award, including for the purposes of Part–6–Shiftwork.
(iii) The facilitative provision in clause 13.4, which allows the spread of hours to be altered, will not operate for the employees referred to in clause I.2.1(i).

(d) Ability for employees to elect not to work ordinary hours continuously

An employee undertaking Remote Work is not required by this award to work their ordinary hours continuously as specified by clause 13.6, if this is agreed between the employer and employee.

(e) Flexible starting and finishing times for part-time employees

(i) Notwithstanding clause 10.2(c), an employer and part-time employee are not required to reach agreement as to the starting and finishing times of an employee for any day that the employee will be undertaking Remote Work, if:

(A) they have instead agreed that the employee may choose their starting and finishing times on those days; or

(B) they have instead agreed to start and finish within a specific range of times.

(ii) Clause 10.3 does not require an employer and employee to reach separate agreements regarding changes to the times at which an employee will start or finish work each day if clause I.2.1(i) applies.

(f) Ability for part-time employees to work non-consecutive hours

(i) Notwithstanding clause 10.5, an employer is not required to roster a part-time employee so that their hours of work are consecutive, provided that:

(A) It has been agreed between the employer and employee that the work does not need to be undertaken continuously; and

(B) The employee is provided with at least 3 hours of work on that shift.

(g) Arrangements for taking meal and rest break while undertaking Remote Work

(i) An employee who is undertaking Remote Work may take any meal or rest break referred to in clause 15 at any time that suits their personal circumstances, instead of taking them at the times prescribed by clause 15, provided that this is agreed to by their employer.
Example: An employee who is working more than 5 hours may elect to take their break at a point in their shift after the first 5 hours of work.
(ii) An employee who is undertaking Remote Work may alter the configuration of the meal or rest breaks referred to in clause 15 in order to suit their person circumstances instead of taking the breaks in the manner contemplated by clause 15, provided that this is agreed by their employer.
Example: An employee who is entitled to take a meal break of between 30 and 60 minutes under clause 15.3 may instead take 3 breaks of 20 minutes duration.
I.2.2 Agreed temporary reduction in ordinary hours
(a) An employer and the full-time and part-time employees in a workplace or section of a workplace, may agree to temporarily reduce ordinary hours of work for the employees in the workplace or section for a specified period while Schedule I is in operation.
(b) At least 75% of the full-time and part-time employees in the relevant workplace or section must approve any agreement to temporarily reduce ordinary hours.

(c) For the purposes of clause I.2.2(a), ordinary hours of work may be temporarily reduced:

(i) For full time employees, to not fewer than 75% of the full-time ordinary hours applicable to an employee immediately prior to the implementation of the temporary reduction in ordinary hours.
(ii) For part-time employees, to not fewer than 75% of the part-time employee’s agreed hours immediately prior to the implementation of the temporary reduction in ordinary hours.
(d) Where a reduction in hours takes effect under clause I.2.2(a), the employee’s ordinary hourly rate will be maintained but the weekly wage will be reduced by the same proportion.
(e) Nothing in Schedule I prevents an employer and an individual employee agreeing in writing (including by electronic means) to reduce the employee’s hours or to move the employee temporarily from full-time to part-time hours of work, with a commensurate reduction in the minimum weekly wage.

(f) If an employee’s hours have been reduced in accordance with clause I.2.2(a):

(i) the employer must not unreasonably refuse an employee request to engage in reasonable secondary employment; and
(ii) the employer must consider all reasonable employee requests for training, professional development and/or study leave.
(g) For the purposes of clause I.2.2(a), where there is any reduction in the ordinary hours of work for full-time or part-time employees in a workplace or section during the period Schedule I is in operation, all relevant accruals and all entitlements on termination of employment will continue to be based on each employee’s weekly ordinary hours of work prior to the commencement of Schedule I.
(h) For the purposes of clause I.2.2(a), the approval of employees shall be determined by a vote of employees. In order for the vote to be valid, the employer must comply with the following requirements:
(i) Where any of the employees are known to be members of the Australian Services Union or another organisation, the ASU or other organisation shall be informed before the vote takes place.
(ii) Prior to the vote of employees, the employer shall provide the employees with the contact details of the ASU, should they wish to contact the ASU for advice; and
(iii) The employer must notify the Fair Work Commission by emailing clerksaward@fwc.gov.au that the employer proposes to conduct a vote under Schedule I. The employer shall provide the work email addresses of the employees who will be participating in the vote, to the Commission. The Commission will then distribute the ASU COVID-19 Information Sheet to the employees prior to the vote. The Commission shall list the name of the business on a register which will be accessible to the ASU, upon request, for the period when Schedule I is in operation.
(iv) The vote shall not take place until at least 24 hours after the requirements of clause I.2.2(h)(i), (ii) and (iii) have been met.
(i) This clause only applies to employers who implemented a temporary reduction in ordinary hours under Schedule I in this Award before 30 June 2020.
(j) Any employee who has had their hours of work reduced pursuant to this Schedule I prior to 1 July 2020 may request an employer to conduct a further vote to confirm the ongoing reduction in hours pursuant to this Schedule I. Such a vote must be held within 7 days of any request. The vote must comply with the requirements in clause I.2.2(h).
(k) If any vote requested under clause I.2.2(j) does not approve of the ongoing reduction of hours or is not held within 7 days of the making of the request, the operation of clause I.2.2 with respect to the relevant employees will cease to be effective 7 days from the date when the request was made.
I.2.3 Annual leave
(a) Subject to clause I.2.3(f) and despite clauses 32.6, 32.7 and 32.8 (Annual leave), an employer may, subject to considering an employee’s personal circumstances, request an employee to take paid annual leave, provided that the request does not result in the employee retaining a balance of less than 2 weeks annual leave after the leave is taken. Such a request must be made a minimum of 72 hours before the date on which the annual leave is to commence.
(b) An employee must consider and may not unreasonably refuse a request to take annual leave made pursuant to clause I.2.3.
(c) Clauses I.2.3(a) and (b) do not prevent an employer and an employee agreeing to the employee taking annual leave at any time.
(d) Employers and individual employees may agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including any close-down.
(e) The period of annual leave must commence before 30 June 2021 but may end after this date.
(f) An employer can only request that an employee take annual leave pursuant to this clause if the request is made for reasons attributable to the COVID-19 pandemic or Government initiatives to slow the transmission of COVID-19 and to assist the employer to avoid or minimise the loss of employment.

 1   [2020] FWCFB 1690

 2   [2020] FWCFB 3443, [2020] FWCFB 5199, [2020] FWCFB 6078, [2020] FWCFB 6985

 3   [2020] FWCFB 5199

 4   ACTU correspondence, 11 April 2021

 5   [2021] FWCFB 2326

 6   An organisation is defined in section 2 of the Act as ‘an organisation registered under the Registered Organisations Act’