Burke hoses down fears that Canberra is seeking a blanket WFH right for award workers

The Fair Work Commission (FWC) is not asking whether award workers should have the blanket right to work from home, and lawmakers are not currently seeking that right, claims Workplace Relations Minister Tony Burke.

The FWC is currently consulting on potential changes to the modern awards system, most notably around remote working allowances and whether modern awards are capable of handling the flexibility of many modern workplaces.

That review has raised the prospect of the FWC finding there should be specific working from home rules built into the modern awards framework.

Any new blanket rule would affect millions of Australian workers, and have knock-on effects for workers on enterprise bargaining agreements, who would gain more leverage to request remote working privileges in their own workplaces.

Workplace legal experts suggest the creation of a wholesale right to work remotely is highly unlikely.

However, fears over a wholesale change to the award system have reached Burke, who on Thursday attempted to moderate those concerns.

Speaking to Sky News, Burke — who asked the FWC to look at the remote work issue as it pertains to modern awards — said his department is not focused on blanket rights for award workers.

The gist of the FWC’s consultation, he claimed, is whether or not the mechanics of modern awards can stop employers and employees who mutually agree on remote work policies from actually carrying them out.

“What the Commission is looking through is to see whether or not there are, in fact, those sorts of barriers, some rules, that prevent people from being able to do some of their work at home,” he said.

Canberra isn’t currently chasing a hard-and-fast right to work remotely, Burke continued.

“In terms of wanting to assert that somebody has a unilateral right to choose the place that they work, that’s not something myself and the department have been talking about at this stage,” he said.

Flexibility exists outside modern award system

Beyond the modern award system, there are already significant allowances for Australian workers to request flexible working arrangements in reasonable circumstances.

Industrial relations reforms led by Burke have even given employees, who had their request to work remotely denied by their employer, the right to take their dispute to the FWC.

“Modern awards already accommodate a right to request flexible working arrangements which can include working from home,” said Warwick Ryan, specialist partner in employment law and workplace relations at Hicksons Lawyers.

There is no compulsion for employers to agree unless the workers fall within certain protected groups, Ryan said.

“Even where workers have the right to arbitrate a request for flexible working arrangements, the Commission will take into account what is reasonable.”

When presented with the existing flexibility in Australia’s industrial relations system, Burke suggested there could still be roadblocks in the modern awards system.

In some rostering scenarios, “you can end up with circumstances where the flexibility that employees and employers want might not be there,” he told Sky News.

“That’s what [the FWC is] looking at. That’s what they’re checking through.”

COVID-era rules making a comeback?

Commenting on the potential outcomes of the review, Ryan said temporary adjustments to the Clerks Award allowing remote work through COVID-19 lockdowns will be front of mind for the FWC.

Even if those measures do re-emerge in modern awards, it is likely employers will still have the final say on remote work.

“Ultimately, if provisions similar to the Covid-era variations re-enter modern awards, it will most likely come down to employer judgment and what is reasonable,” he said.

“In the case of small businesses, the fact that they have a small pool of employees to contact may work in their favour.”

The existing arbitration pathways offered by the FWC don’t automatically wave through employee requests to work from home either, Ryan said, pointing to a November ruling that denied an Adelaide worker’s WFH request.

“The Fair Work Commission has already shown that not all working from home requests should be granted and employers are within their rights to require employees in the office for at least part of the time,” he said.

Interested parties can submit their views to the FWC before March 12, 2024.