Commission, however, stops short of legislating right to work from home
The Fair Work Commission (FWC) has amended the Clerks—Private Sector Award 2020 to include a new working-from-home provision, giving clerical and administrative workers a formal mechanism to request remote work arrangements for the first time.
The FWC, however, stopped short of legislating the right to have those requests approved.
The Full Bench decision, handed down on 27 August, inserts new clause 5A into the award, which covers an estimated 1.56 million clerical and administrative employees across Australia.
"We consider that it is necessary to achieve the modern awards objective to vary the Clerks Award to include a working from home term," the Full Bench ruled.
It attributed its decision to the need for the Clerks Award to constitute a fair and relevant safety net of terms and conditions by having provisions adapted to the contemporary reality of working from home arrangements.
"That, in our view, requires a term which provides for a mechanism for an employee to request, and their employer to agree to, a mutually-suitable working from home arrangement," it added.
The decision, delivered by Justice Hatcher, Deputy President O'Neill, and Commissioner McKinnon, follows proceedings initiated by the Commission in August 2024 after a ministerial review identified working from home as a priority issue in modern award regulation.
Not a right
The FWC declined to adopt the position advanced by the Australian Council of Trade Unions and the Australian Services Union (ASU), which had proposed a formal right-to-request mechanism modelled on the existing National Employment Standards flexible working arrangement provisions.
The Full Bench found that the evidence did not support the proposition that a major regulatory intervention was necessary, pointing to survey data from Swinburne University showing that working-from-home arrangements are already widespread in the sector.
The research found that 66.5% of employees covered by the award had worked from home at some stage, with most requests approved in whole or in part.
"Working from home arrangements are widespread to the extent that they may now be considered an entrenched feature of employment in the clerical and administrative sector," the Full Bench said in its decision.
"The evidence does not support the proposition that employers are, to any significant degree, refusing requests for working from home arrangements on arbitrary, capricious or discriminatory grounds."
The FWC also rejected employer-side proposals to widen the spread of ordinary hours for employees working from home, finding that such changes would likely breach s 135A of the Fair Work Act 2009, which prohibits reductions in overtime entitlements.
The new clause does, however, provide that a request made under the term constitutes a workplace right protected under s 340 of the Fair Work Act, and disputes about such requests may be referred to the Commission's dispute resolution process.
Union claims partial victory
Despite losing its case, the ASU called the FWC's decision a "historic win for work from home rights."
"This is a huge step forward for workers' rights in this country," said ASU national secretary Emeline Gaske.
"That matters enormously for our professional and administrative members, who have been asking for this for years. It gives flexibility to workers, especially working women who are more likely to be juggling work, caring or other responsibilities alongside their day jobs."
The ASU, however, stressed that the right to work from home needs to go further, pointing out that the decision did not address how workers are protected once they are working from home.
It also does not address how requests to work from home are considered, or what happens if an employer later decides to change or end a work from home arrangement and force employees back to the office.
"This is an important victory today, but it isn't the finish line," Gaske said. "This decision doesn't yet give all workers a nationally recognised right. It doesn't describe what protections workers have while working from home."
Employers hail decision, turn fire on Victoria
Meanwhile, the Australian Industry Group welcomed the outcome as a vindication of its position when it comes to working from home.
"We argued that widespread working from home arrangements have developed which are consensual, mutually beneficial and inconsistent with the current provisions of the Clerks Award. The Commission has accepted this proposition," Innes Willox, chief executive of the Ai Group, said in a statement.
"Ultimately it rightly held that a new regulatory intervention is not required to compel employers to facilitate working from home in a wider range of circumstances."
It then used the decision to take aim at the Victorian government's proposed right-to-work-from-home legislation.
"The historic decision also provides powerful vindication for industry agreements that there is simply no need for further legislative intervention in this area, including the Victorian Government's proposals to introduce new rights to request working from home," Willox said.
Victoria's WFH law
The Victorian government is gearing up for a new law that enshrines employees' right to work from home up to two days per week.
But the FWC's remarks clashed with the Victorian government's reasons for its own WFH laws as the bench noted that the extent and nature of WFH arrangements did not justify a major regulatory intervention to compel bosses to let staff work from home in a wider range of circumstances.
"The Victorian proposals appear directed at addressing a problem which the evidence before the Commission suggests doesn't exist in the clerical and administrative sector," Willox said.
"Employers and employees already negotiate and implement working from home arrangements on a widespread basis, and most requests are accommodated."
Victorian Premier Ben Carroll has confirmed that the state's controversial WFH laws will proceed largely unchanged, despite initially hinting that "sensible changes" will be considered.
Sally Curtain, chief executive of the Victorian Chamber of Commerce and Industry (VCCI), called it "another 'Only in Victoria' policy."
"At a time when we should be competing harder for investment, jobs and talent, we are turning Victoria into an island — with its own rules, its own costs and its own barriers to doing business," Curtain said.
Findings from the VCCI showed that three out of four businesses believe the WFH laws will negatively impact their operations, with almost 60% saying the reforms will make them more likely to start, expand, or invest outside of the state.
"The disappointment here is that this was avoidable. There was another way. We put it on the table. It cost less, regulated less and achieved the objective. The Government chose not to take it," Curtain said.
"We took Premier Carroll at his word that he wanted a reset with the business community. Sadly, the Premier has not listened and is now placing Victorian jobs and investment opportunities at risk."
