| [2020] FWCFB 5999 |
| FAIR WORK COMMISSION |
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, 10 NOVEMBER 2020 |
Clerks—Private Sector Award 2020 – Working from home – survey and research materials – proposed extension of Schedule I – provisional view.
[1] On 28 March 2020 the Commission issued a Decision 1 granting a joint application filed by the Australian Industry Group (Ai Group) and the Australian Chamber of Commerce and Industry (ACCI), 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. That initial joint application was supported by the Australian Council of Trade Unions (ACTU) and the Australian Services Union (ASU).
[2] A subsequent application was filed by Ai Group and ACCI in June 2020 to vary the terms of Schedule I and its period of operation (the First Extension Application). A revised draft determination was filed by the Applicants in the morning of 30 June 2020. The ASU opposed the Application.
[3] The First Extension Application was the subject of a hearing on 30 June 2020. At the conclusion of the hearing the Full Bench decided to grant the application and vary the award in the terms proposed in the revised draft determination. Reasons for that decision were published on 9 July 2020. 2
[4] On Thursday 24 September 2020, Ai Group and ACCI (the Applicants) filed a joint application to extend the operation of Schedule I (the Second Extension Application). If granted, the proposed variation would result in the extension of the period of operation of Schedule I, to 29 March 2021.
[5] In a decision issued on 6 October 2020 3 (the 6 October decision) the Full Bench decided to extend the operation of Schedule I until 30 November 2020.
[6] At the conclusion of the 6 October decision the Full Bench set out the following observations in relation to future variations to the Clerks Award:
‘[89] As we have mentioned, 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.
[90] As noted in the President’s Statement of 31 August 2020:
‘[25] One of the most significant shifts in working arrangements since the start of the pandemic has been an increase in working from home arrangements. Government health advice, encouraging employees to work from home wherever possible, has accelerated what had been an emerging feature of contemporary working arrangements in some occupations and industries.’
[91] The President’s Statement went on to observe that while enterprise bargaining was one mechanism available to facilitate working from home arrangements, the evidence suggests that enterprise bargaining is not readily accessible by small businesses.
[92] The President’s Statement also observed:
‘[37] Under modern awards, an employer and an individual employee can reach an agreement on how certain provisions apply including: time off instead of payment for overtime, cashing out or taking annual leave in advance and substitution of public holidays.
[38] Modern awards also include facilitative provisions that enable the flexible operation of provisions in the award such as variation to the span of ordinary hours, 12 hour shifts and the variation of meal breaks by agreement between the employer and the majority of employees affected in the workplace. A right to request flexible working arrangements is also available to some employees under the National Employment Standards set out in the Fair Work Act.
[39] However, most modern awards do not expressly provide for nor deal with issues relating to working from home arrangements.
[40] While working from home is currently possible and permissible in many workplaces, the absence of express provision to facilitate working from home can impose practical constraints on these arrangements. For example, absent an express provision, other award provisions such as the span of hours within which ordinary hours can be worked, continue to apply. This can constrain the utility of working from home arrangements from both the employee and employer perspectives as it requires the employer to pay overtime or penalty payments in circumstances where the employee has sought the additional flexibility in order to meet their preferences.’
[93] We agree with the above observations.
[94] 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.’
[7] In reaching that decision the Full Bench accepted the submission of the ASU that there is at present an ‘evidentiary gap’ regarding the incidence of working from home arrangements amongst employees covered by the Clerks Award and the extent to which the flexibility provided by Schedule I has been utilised. The Full Bench proposed that a survey could be conducted in order to address this evidentiary gap.
[8] On 14 October 2020 the Full Bench issued a statement 4 (the October statement) and a draft survey was attached to the Statement.
[9] The survey questions focussed on employees who have been working from home since 1 July 2020. This is because the span of ordinary hours for employees (other than shiftworkers) working from home was varied with effect from 1 July 2020 to between 6.00 am and 10.00 pm, Monday to Friday, and between 7.00 am and 12.30 pm on Saturday.
[10] It is proposed that the survey be administered via an online survey platform and distributed by email by the employer organisations (Ai Group and ACCI) to their members and potentially to the online subscribers to the Clerks Award. Instructions for completing the survey and a Commission contact will be included in the email.
[11] Interested parties were invited to comment on the draft survey and a conference was held on 27 October 2020. The transcript from that conference is available here. At the conference the parties sought an opportunity to reflect on the discussions and file further submissions.
[12] Submissions were received from the following parties:
• ASU (29 October 2020); and
• ACCI and Ai Group (29 October 2020).
[13] ACCI and Ai Group also jointly filed proposed amended survey questions (29 October 2020). On 2 November 2020 the ASU filed correspondence advising it would rely on its submissions dated 29 October 2020.
[14] A revised survey proposal was published on 2 November 2020 and a draft email to accompany the survey was published on 4 November 2020.
[15] A further conference was listed for 5 November 2020 to discuss the revised survey and the draft covering email. On 5 November 2020 Ai Group wrote to the Commission seeking the conference be rescheduled so the parties could engage in further discussions.
[16] The further conference was held on 9 November 2020. 5 At the conference, the President indicated to the parties that a new Full Bench would be constituted to continue dealing with any further variation proposed to the Clerks Award.
[17] At the conference, Ai Group and ACCI proposed that the operation of Schedule I be extended until 29 March 2021 to provide time for the parties to give further consideration to the form of an award term that is intended to operate beyond the current restrictions imposed to deal with the COVID-19 pandemic. The ACTU and ASU advised that they did not oppose the proposed extension. A further conference is to be held next week (see [25] below).
[18] It is our provisional view that Schedule I should be extended until 29 March 2021 in accordance with the proposal advanced by Ai Group and ACCI.
[19] As outlined in the October statement, in order to provide further assistance to the parties, academics have been engaged to undertake research to inform the Commission with regards to working from home. To make the information timely, the research reports will now be published in late November 2020.
[20] The report by Swinburne University will explore key trends in data on working from home and will incorporate any new data on working from home to be released by the Australian Bureau of Statistics (ABS) Household Impacts of COVID-19 Survey and the Business Indicators, Business Impacts of COVID-19 later this month.
[21] A report on employee preferences for flexibility undertaken by the University of Sydney will also be published along with a research reference list prepared by staff of the Commission.
[22] Commission staff have also prepared the following information notes which have been published on the Coronavirus (COVID-19) updates and advice webpage:
• Information note – update to payroll jobs and wages (updated 6 November 2020);
• Information note – Government responses to COVID-19 pandemic (updated 10 November 2020);
• Information note – COVID-19 situation update (updated 10 November 2020).
[23] Each of these information notes will again be updated in the coming weeks.
[24] As mentioned earlier, it is our provisional view that Schedule I should be extended until 29 March 2021. Any interested party opposing this provisional view must file a submission setting out their views by no later than 4pm on Thursday 12 November 2020. If no submissions are received opposing the provisional view, we will vary the Clerks Award accordingly.
[25] A further conference will be listed on Wednesday 18 November 2020 at 2pm. The purpose of the conference is to:
1. Seek to finalise the survey instrument and covering email;
2. Discuss when the survey will be administered; and
3. Discuss the further programming of this matter.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR724931>
5 Transcript, 9 November 2020.