Fair Work chief backs flexible work changes for small businesses

David Marin-Guzman

Sep 1, 2020

AFR

The head of the Fair Work Commission has proposed new workplace conditions in response to employees working from home during the pandemic so staff can work flexible hours without overtime or penalty rates.

In a statement released late on Monday, president Justice Iain Ross set out 14 pages of draft flexibility terms for industry awards that would allow employers and employees to agree to work from home or have earlier start or finish times without traditional award constraints to aid the COVID-19 recovery.

The model clauses, which he said should be piloted over 12 months, would also allow permanent employees to compress their work week into fewer days or extend the span of ordinary hours in a workplace, provided at least 75 per cent of staff agreed.

The president drafted the conditions on his own initiative in part due to the increase in working from home arrangements during the pandemic, accelerated by government advice.

“It is likely the direct economic and social impacts of the pandemic will be felt for some time to come and 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,” he said.

“To facilitate further workplace flexibility to enable employers and employees to respond to challenges quickly, as well as meeting the changing expectations of employees, commission staff have prepared a model flexibility schedule for potential inclusion in appropriate modern awards.”

He said the award flexibility terms “are likely to be of particular relevance to small businesses, as they are less likely to be covered by an enterprise agreement”, which he said would normally facilitate working from home.

The proposal comes as employers and unions are in their last month of discussions over industrial relations reform, including on simplifying awards.

The president’s statement cited 20 different awards in the retail, hospitality and service industries for which the model conditions could improve award usability for small businesses.

Many of the conditions are similar to temporary COVID-19 clauses introduced into the clerks award, which covers more than 1 million administrative workers.

President Ross said that “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”.

In particular he said the awards’ span of ordinary hours threatened to constrain remote working as it required the employer to pay overtime or penalties outside of those hours even if the worker preferred the additional flexibility.

His proposed clause would allow an employer to agree with an employee on working from home to meet genuine needs and extend the span of hours by up to one hour at each end – possibly more depending on the award – so that penalties did not apply.

Other conditions include allowing employers to direct staff to stagger their starting and finishing times to avoid busy periods on public transport or to do work outside their classification as long as it is within their skill and competency.

Employees can also agree to collectively share a reduction in working hours when they cannot all usefully be employed, provided at least 75 per cent of staff support doing so, and they would also have the right to take twice as much annual leave at half pay.

The president said he had proposed the conditions as a starting point for discussion among unions and employers and not all of the clauses would be suitable for all awards. “Interested parties are encouraged to discuss and reach agreement on the extent of flexibility required and any necessary tailoring of specific terms to meet the needs of the employers and employees covered by particular modern awards