Working from home in Australia

The Fair Work Commission has released a Draft Award Flexibility Schedule in self-described effort to promote discussion about ways in which flexibility can be introduced into modern awards to assist businesses and industries impacted by COVID-19.

In releasing the Draft Schedule Justice Ross, President of the Fair Work Commission has noted that the COVID-19 pandemic has accelerated an emerging feature of modern working arrangements, namely employees working from home. The Draft Schedule is an effort to facilitate the flexibility needed to implement these arrangements.

Key features of the Draft Schedule include:

• employers and employees may reach an agreement on a working from home arrangement that balances the personal and work responsibilities of the employee with the business needs of the employer;
• full time and part-time employees may make a request to their employer to compress their working week, so that their usual weekly ordinary hours are worked over a reduced number of their usual work days;
• an employer may change the span of hours in a workplace or section of a workplace with the agreement of 75% of its employees;
• an agreement may be reached to share a reduction in working hours in a workplace or section of a workplace with the agreement of 75% of employees, in circumstances where an employer cannot usefully employ all full time and part-time employees in a workplace or section of a workplace; and
• an employer may issue directions to its employees to perform all duties within their skill and competency, to stagger starting and finishing times of work or to work at a different workplace (including the employee’s home).

While the initial period of operation of the Draft Schedule is proposed to be 12 months, the Fair Work Commission has indicated that not all of the clauses proposed in the Draft Schedule will be suitable for all modern awards and accordingly clauses may be tailored to meet the needs of a particular industry or occupation. Such tailoring will need to occur before the Draft Schedule is added to any modern award.

The Draft Schedule is in its preliminary stage and will be subject to discussion between affected parties before being formally incorporated into any modern awards. However, the Draft Schedule demonstrates that the Fair Work Commission is embracing a longer-term approach to adapting to the ongoing social and economic impacts caused by COVID-19.

The DLA Piper employment team has extensive experience in advising clients on the operation of modern awards and in assisting clients to navigate the transition to remote working. Please reach out to our team to discuss how we are able to assist you.