Major change to pay rates proposed in Australia: What it means for you
A fiery new industrial showdown is brewing as employers demand that staff who work from home give up penalty rates and other hard-won entitlements, arguing that the flexibility of remote work makes them obsolete.
The proposed changes to the clerks' award would affect 1.8 million administrative and IT workers.
Business NSW has lodged an application with the Fair Work Commission to scrap strict rules around minimum hours and other award conditions for remote staff, claiming current workplace laws are outdated and don't reflect the new era of flexible work.
It marks the first official attempt by employers to rewrite pay protections for the work-from-home generation, in what could become a game-changing test case for the Australian workforce.
Australian Business Lawyers and Advisors CEO Nigel Ward, representing Business NSW, said the rules affecting working from home, last created for clerical and administrative employees in 2009, are impeding flexible working arrangements and unfairly punishing employers.
'When an employer governed by certain awards allows a working parent to pick up the kids from school, take their car for a service or run errands for an ageing parent, they may be in breach of the award,' he said.
'When an employee chooses to work at 6.30am or to shift their normal hours until 9.30pm to make up for that time, the boss may again be in breach – flexibility for the employee while the boss is obliged to follow work rules designed for the 9-5 office environment.'
Business NSW said the proposed changes would only apply at the employee's request, rather than being imposed on them
'Even something as simple as when an employee, working at home, takes their lunch break can technically breach the clerks' award if it falls outside the prescribed times.'
Mr Ward said that while this might go unnoticed day to day, it can become a legal issue if the employment relationship breaks down later.
'Employees have up to six years to make claims based on these technical breaches, exposing employers to unnecessary legal risk,' he said.
'As well as being obsolete, these rules are also prime examples of unnecessary red tape; the kind of red tape Treasurer Jim Chalmers should consider slashing as part of his Economic Reform Roundtable later in August.'
Business NSW said the proposed changes would only apply at the employee's request, rather than being imposed on them.
Among the proposed changes are removing the requirement that part-time and casual employees work a minimum engagement of three hours—as well as work those hours continuously.
And enshrining greater flexibility by scrapping the obligation that part-timers working from home are provided with set hours that can only be changed by way of a written agreement.
Mr Ward said the changes would also allow WFH employees to take meal and rest breaks at times that suit them, as opposed to being required to take meal breaks within the rigid times set by the award.
Business NSW is also proposing the removal of allowances that would not ordinarily be required when working from home.
These include first aid allowances, clothing and footwear allowances (necessary for employees in uniforms), and overtime meal allowances, which were traditionally required to compensate for the cost of purchasing a meal away from home.
But Australian Services Union national secretary Emeline Gaske told the AFR it would fight the employers' proposal and labelled it 'a direct assault on roles that are held predominantly by women.'
'They want to use working from home as an excuse to strip away basic entitlements, from overtime pay to rest breaks and even minimum shift lengths,' she said.
'We will not allow big business to create a two-tiered system where employees who work from home are treated as second-class citizens.
'Working from home should be about modernising work, not undermining it.'
A Swinburne University of Technology survey commissioned by the FWC found that three out of four employees working from home are dealing with personal matters during work time.
It also found a significant increase in the number of organisations with formal WFH policies compared to pre-pandemic levels.
Concerns regarding performance and productivity were the main reasons identified by employers for denying requests to work from home.
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