Work-from-home door could open for millions

Employers have condemned a Fair Work decision that could set a precedent for the remote work rules to apply to millions of workers.

Fair Work will determine new working-from-home rules.

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Employers have accused the Fair Work Commission of “reckless adventurism”, slamming its decision to examine giving clerical staff the legal right to request to work from home, in a case that will set a precedent for the remote work rules to apply to millions of workers.

The Australian Chamber of Commerce and Industry said whether employees worked from home or not should stay within the “realm of managerial prerogative”, and it would strongly oppose the commission giving workers a positive right to work remotely.

In pushing for the new working-from-home right, the ACTU will seek to narrow the grounds on which an employer can reject a request, and give workers the ability to appeal a rejection to the commission.

Announcing the first hearing for September 13, commission president Adam Hatcher said on Thursday that the initial proceedings would develop a working-from-home term to be inserted into the award covering private-sector clerical workers.

Among the issues to be examined will be how the proposed working-from-home clause interacts with the new right-to-disconnect laws that came into operation this week.

The clerks award is the most commonly used modern award for working-from-home arrangements, with 41.4 per cent of clerical and administrative workers regularly working from home compared to 31.5 per cent of employees across all occupations.

Justice Hatcher said the clerical award term might serve as a model for other awards.

The initial case will examine how the right should be available to clerical workers and in what ­circumstances would an employer be able to refuse an employee ­request.

Alternatively, the commission will examine if the working-from-home clause should be facilitative in nature only, and not an explicit legal right

ACCI chief executive Andrew McKellar criticised Justice Hatcher’s move. “This is reckless adventurism on part of the commission,” he said. “There should be no enforceable edict that a clerks award-covered employee should have any positive ability to work from home – that is a matter for their employer.

“ACCI will participate in this process and push back on the ambit union claims that will undoubtedly follow.”

ACTU secretary Sally McManus welcomed the case as an ­opportunity to clarify the rights of workers and employers in relation to working from home.

“Employees covered by the clerical award should have a right to request to work from home and employers should have the right to refuse requests on reasonable business grounds,” she said.

“Codifying the right is a positive thing. It usually means that more issues get resolved because employers and workers are clear about what their rights are.

“This would establish, if successful, just a clear right to ask simply whether you could, and codify reasons for refusal.

“It basically stops capricious behaviour by employers where ­inconsistent or unfair reasons are given rather than whether or not it’s reasonable for the ­business.”

She said reasonable business grounds for rejecting a request “usually goes to issues around the size of an employer, the nature of the work, and where a job can’t be done from home just as well”.

“Ninety per cent of employers and workers are sensible about this and do come to arrangements,” she said. “Putting it in there as a right actually updates our workplace rights and laws as we should be doing all the time to adjust for the reality of 2024.

“We do, of course, acknowledge there do need to be guardrails too, and it doesn’t suit everyone in every circumstance, either employers or employees.”

Workplace Relations Minister Murray Watt said the world had changed post-Covid and many businesses and workers were taking advantage of the fact that people were able to work quite productively from home.

“I think we need a balanced ­approach,” he said. “There’s times in my office where people work from home, there’s times when we need them to be at the office and do that type of team work. I’m ­confident that employers and workers can work these things out co-operatively.”

Opposition employment spokeswoman Michaelia Cash said employers would be concerned the case might set a precedent that added “further complexity to an already complicated and confusing system”.

“Work-from-home arrangements should be able to be worked out between employers and ­employees at a workplace level,” she said.

“Working from home does not suit the requirements of all businesses and it should not be a right that all workers expect.”

Australian Industry Group chief executive Innes Willox said employers must not be unreasonably compelled to agree to working from home where, for example, they were not practicable for operational reasons.

“Further, the Fair Work Act ­already enables certain categories of employees to request working from home,” he said. “Awards should not overlay these provisions with further complexity or regulation.

“These are matters that are generally best dealt with at the enterprise-level, through mutual discussion and co-operation between employers and their employees.”

Working-from-home provisions were temporarily inserted into the clerks award during the Covid pandemic but they are not currently a feature of modern awards.

Justice Hatcher said the commission’s provisional view was it would examine how “working from home” should be defined and whether the term would include the right for employees to request such 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,” he said.