The FWC proposed award flexibility schedule which has been released accompanied by a statement from Fair Work Commission President Ross attempts to provide clarity on flexible working arrangements to assist both employers and employees adapt to “the new normal” which is likely to include significant remote work in some industries.

With the Covid-19 “Schedule X” due to expire in many modern awards on 30 September 2020, and other Award specific Covid-19 schedules also expiring by the end of October, the Commission has turned its mind to the ongoing effects of the pandemic on business needs and the way in which it is likely businesses will be forced to operate.

President Ross’ statement noted that only about 20% of workers were covered by enterprise agreements dealing with home-based work, that relatively few small businesses are covered by enterprise agreements and most modern awards do not expressly provide for nor deal with issues relating to working from home arrangements and other flexible arrangements, commenting “the absence of express provision to facilitate working from home can impose practical constraints on these arrangements.”

The problem with flexibility

The practical effect of the absence of provisions on remote working is that where industrial instruments do not deal with working from home, and a flexibility agreement has not been entered into, award provisions such as the span of hours within which ordinary hours can be worked, continue to apply. The employee seeking flexibility may be disadvantaged in not being able to work in the preferred hours for which flexibility has been sought, and the employer may be required to pay overtime or penalty payments in circumstances where the employee has sought to work flexible hours outside the ordinary span of hours specified in the award or due to staggering start and finish times.

The ACTU has also expressed concern that workers are without protection on matters such as working hours, with some employers anecdotally unwilling to pay overtime to employees working at home.

The FWC proposed award flexibility schedule

The FWC proposed flexibility schedule would enable employers and employees to reach an agreement on a working from home arrangement that balances the personal and work responsibilities of the employee with the business needs of the employer. It also includes provisions for:
• employees to work the same hours over fewer days;
• employees to share reduced hours across a team where the employer cannot usefully employ all employees in a workplace or a section of the workplace;
• employees to take twice as much leave at half pay;
• employers to provide a direction for employees to work at a different workplace (including the employee’s home); and
• employers utilising the schedule’s provisions consenting to the FWC arbitrating any disputes.

Consultation and Discussion

The FWC proposed award flexibility schedule is annotated with discussion points and explanations and is intended to be the starting point for discussion between interested parties, recognising different industries and occupations will have different needs in terms of the type and extent of flexibility required to meet the needs of the employers and employees covered by particular modern awards.

The President noted that the Commission has effectively expedited consent applications during the pandemic, and has encouraged interested parties to discuss the FWC proposed award flexibility schedule and reach agreement on any changes and specific terms required to suit particular modern awards and get the best outcomes for employers and employees.

Senior Associate