By: Sian Gilbert and Dexter Cabal
At a glance
- Since the COVID-19 pandemic, many employers have continued supporting working from home as part of the flexible working arrangements they offer. Others have been promoting return to office practices.
- The Fair Work Commission (Commission) is currently undertaking a review and consultation process to ascertain whether changes to modern awards are required to increase flexibility for employees balancing work and care responsibilities – including working from home.
- If the Commission decides the modern awards need to be varied to include work-from-home (WFH) rights, this change will impact employers with employees covered by the awards and, potentially, other workers on enterprise agreements.
An increase in the numbers of WFH arrangements
According to August 2023 data from the Australian Bureau of Statistics, 37% of employed people were regularly working from home.1
While some employers were urging more employees to return to the office in 2022 and 2023, the August 2023 data shows the WFH arrangements as being 5% higher than pre-COVID-19 pandemic levels of August 2019.2
The good, the bad and the ugly of WFH arrangements
There have been many benefits of WFH arrangements for employers, including increased productivity, reduced premises-associated costs and positive employer brand appeal, which boosts engagement, retention and recruitment outcomes.
For employees, WFH arrangements have offered increased flexibility to better balance work and life (including caring responsibilities), created new employment opportunities (notably for parents re-engaging in the workforce) and saved commute times.
There have also been widely reported concerns about WFH arrangements for both employers and employees, including poorer levels of collaboration, inclusion and team connectivity, feelings of isolation, and the difficulty of disconnecting from work.
Commission’s review
The Commission has the power to make a determination to vary a modern award if it is satisfied that approach is necessary to achieve a modern award’s objective3. In that context, the Commission is currently seeking feedback on whether it needs to vary modern awards to increase flexibility for employees balancing work and care responsibilities. WFH arrangements are one way to increase that flexibility.
On 29 January 2024, the Commission published a discussion paper4 concerning work and care as part of the Modern Awards Review 2023-24 (Review). It prepared the discussion paper to help guide the consultation process and to promote a discussion about balancing work and care in the setting of modern awards.
The Commission is seeking employers’ feedback through a survey, which is designed to gather information about potential changes to modern award provisions that may offer greater flexibility to employees to help them better balance work and care responsibilities.5
The survey is likely to include questions about WFH and other flexible workplace practices, including some suggested by interested parties, with the results from the survey aiding to inform the Final Report of the Review.6
Key dates
Submissions on the discussion paper are due by 12 March 2024 and reply submissions are due by 26 March 2024.7
The consultation process is scheduled to start on 3 April 2024, and will continue on 4, 9 and 10 April 2024.8
Potential for a wide-reaching impact
Everyone from employers, employees and government, including Workplace Relations Minister, Tony Burke, will be eagerly anticipating the release of the Commission’s findings.
If the Commission’s findings are indicative of potential determinations being made to vary modern awards to include WFH rights, this will impact 2.2 million Australian employees encompassed by those awards, as well as potentially millions of other workers on enterprise agreements.9
[3] Fair Work Act 2009 (Cth), s 157
[5] https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc213.pdf at [5]
[6] Ibid.
[7] https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc476.pdf at [4]
[8] Ibid at [5].