DECISION

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)

Clerical industry
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT	MELBOURNE, 24 JUNE 2021

Clerks-Private Sector Award 2020–no submissions or evidence filed–hearing abandoned.

[1] The Clerks–Private Sector Award 2020 (Clerks Award) currently includes Schedule I-Award flexibility during the COVID-19 pandemic. Schedule I was originally inserted into the Clerks Award on 28 March 2020 1 and was due to expire on 30 June 2020. The Schedule has been varied by 4 subsequent decisions of the Commission and is now due to cease operation on 30 June 2021.

[2] In a decision issued on 6 October 2020 2, we noted that:

‘…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…

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…

We direct the ASU, ACTU, Ai Group and ACCI to confer in respect of the variations to the Clerks Award (if any) which are necessary to facilitate agreed working from home arrangements. In this regard we refer the parties to the model Flexibility Schedule attached to the President’s Statement of 31 August 2020 as a starting point for those discussions. We would also refer the parties to the updated Information Note on Working from Home published on 1 October 2020.’

[3] The current version of the Schedule was inserted into the Clerks Award on 22 December 2020. It provides for flexibilities in relation to employees working from home and includes:

• a definition of remote work

• an extended span of hours for employees working remotely

• a provision allowing employees to elect to work their hours in a non-continuous manner while undertaking remote work

• a provision allowing part-time employees to select their own starting and finishing times when undertaking remote work, with agreement from their employer, and

• flexibility in relation to the taking of meal or rest breaks by employees undertaking remote work, subject to agreement with the employer.

[4] The Schedule also provides flexibilities in relation to a temporary reduction in ordinary hours of work and the taking of annual leave. The Schedule includes the following safeguards:

• in effect, disputes about the operation of Schedule I can be dealt with by the Commission, by arbitration, and

• any direction or request given by an employer under Schedule I must be given in writing and does not apply to the employee if the direction is unreasonable.

[5] On 11 April 2021, the Australian Council of Trade Unions (ACTU) wrote to the Commission on behalf of the Australian Services Union (ASU), the Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (Ai Group) asking the Commission to discontinue the current matter. The parties note that they intend to continue to monitor relevant developments with a view to potentially engaging in further discussions and/or seeking the further assistances of the Commission through a relevant application, if a further change to the Clerks Award is necessary.

[6] On 29 April 2021, we issued a Statement 3 expressing the provisional view that Schedule I should not be extended and should cease operation on 30 June 2021.

[7] The provisional view was opposed by two organisations: HR Central and HR with Ease. Both submissions object to the provisional views on similar grounds; that is that the current flexibility provided by Schedule I has been beneficial to businesses employing employees under the Clerks Award. HR Central submits that:

‘The current flexibility in the Clerks Award has been greatly appreciated by employees in particular, as it has provided significant flexibility for managing work commitments with other external obligations including caring responsibilities and other domestic issues.

One example of this is an employer that has a number of part time bookkeepers employed to service their customers. The majority of the employees are women. The employer only requires that the work be done, and their customers’ requirements are met as agreed. The employee has the freedom to do the work within their choice of hours of the day and in the blocks of time that suit them – that can be one hour or five hours, or anything in between. The flexibility of start and finish times cannot be underestimated, and the employer has found increased engagement and positive feedback from employees. Additionally, the employer is not looking to have employees come back to an office in the future, as the work is either done at home or at a client site, and the employees are fully supportive of this.’

[8] On 18 May 2021, we issued a further Statement 4 setting out directions for the filing of submissions and evidence. In that Statement, we noted that there was a question about the standing of the two HR companies to represent the industrial interests of employers or employees covered by the Clerks Award in this application to vary omit or include terms in a modern award. In order to deal with this potential technical impediment, we decided to deal with the HR submissions as requests for us to consider acting on our own initiative pursuant to s.157(3)(a) of the Act

[9] We did not receive any response to the 18 May directions. Commission staff contacted HR Central and HR with Ease on 6 June 2021 to ascertain whether they intended to file anything further in this matter. HR Central subsequently wrote to the Commission noting that it had unintentionally missed the filing deadline of 28 May 2021 and requesting further time to respond to the Statement dated 18 May 2021. We issued a further Statement 5 on 7 June 2021, amending the directions as follows:

1. Any interested party opposing the provisional views that the matter should be discontinued and that Schedule I should cease operation should file any further submissions or evidence in support of their views, including the duration of any proposed extension by 4:00pm (AEST) on Friday 11 June 2021.

2. Submissions and evidence in reply should be filed by 4:00pm (AEST) on Wednesday 23 June 2021.

3. A hearing will be listed at 3:00pm (AEST) on Friday 25 June 2021.

4. Parties wishing to appear at the hearing are to provide the name, direct number and organisation by 4:00pm (AEST) on Thursday 24 June 2021 to chambers.ross.j@fwc.gov.au. A notice of listing will be issued separately.

[10] We did not receive any submissions or evidence in compliance with directions 1 or 2. The two HR companies who initially opposed the provisional view have been provided with multiple opportunities to file further evidence and submissions in support of their position and have failed to do so.

[11] The failure to file submissions and evidence means that there is no evidentiary basis for granting an extension to the Schedule. Further as set out above, the ACTU, ASU, ACCI and Ai Group have expressed the view that the present matter should be discontinued. In these circumstances, we do not consider that there is any utility in proceeding with the hearing listed for Friday 25 June 2021. That hearing will be cancelled.

[12] We confirm our provisional views set out in the Statement dated 29 April 2021, that Schedule I should not be extended and will cease operation on 30 June 2021.We do not propose to take any further action on our on motion in respect of this matter, at this time.

[13] It is open to interested parties to make an application to vary the Clerks Award to facilitate flexibility for employees working for home. The Commission is available to assist interested parties by facilitating conferences for discussion of these issues. Any request for a conference should be sent to chambers.ross.j@fwc.gov.au.

PRESIDENT

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