1
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
DEPUTY PRESIDENT O’NEILL
COMMISSIONER MCKINNON
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.
[1] 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
20241 (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)
[2024] FWCFB 407
STATEMENT AND DIRECTIONS
AUSTRALIA FairWork Commission
[2024] FWCFB 407
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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?
[2] 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.
[3] 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.
[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?
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[5] 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.
[6] 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.
[7] 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
[8] 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)).
[9] 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.
[10] 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
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[11] 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.
[12] 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
[13] 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
THE FAIR WORK FAI COMMISSION THE
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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
https://www.fwc.gov.au/documents/sites/am2024-19/am202419-pharmacists-pharmacy-industry-award-data-profile-300824.pdf
https://www.fwc.gov.au/documents/sites/award-review-2023-24/am202321-data-profile-work-and-care.pdf
[2024] FWCFB 407
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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.
https://www.fwc.gov.au/hearings-decisions/major-cases/previous-major-cases/modern-awards-review-2023-24
https://www.fwc.gov.au/documents/sites/clerks-work-from-home/research/am202098-survey-analysis-110221.pdf
[2024] FWCFB 407
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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.
Printed by authority of the Commonwealth Government Printer
PR780544
1 [2024] FWCFB 357.
2 Transcript, 13 September 2024 PN79.
https://www.fwc.gov.au/documents/sites/am2024-34/2024fwcfb357.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb357.pdf
https://www.fwc.gov.au/documents/sites/am2024-34/20240913_am202434.pdf
