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Fair Work Commission releases draft flexible working clauses

Employers breathe a sigh of relief as the Fair Work Commission releases draft flexibility clauses that help employers and employees discuss flexible working arrangements during and beyond COVID-19.

On Monday, Fair Work Commission president Iain Ross published a “draft award flexibility schedule” outlining the ideas that modern awards could adopt to help SMEs achieve flexible work arrangements during the COVID-19 recovery.

This arrives in addition to statements released by the Fair Work Commission in March, May and August this year about changing work arrangements under COVID-19.

The draft award flexibility schedule allows employers and employees to work flexibly without overtime or penalty rates. For instance, a proposed clause could allow employers and employees to agree on staggering starting and finishing times to avoid crowding on public transport or to limit the number of employees waiting to use a workplace lift.

“It is likely the direct economic and social impacts of the pandemic will be felt for some time to come and 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,” Justice Ross said in a statement on Monday.

“It is intended that the model Schedule be used as a starting point for discussion between parties. Not all of the clauses proposed in the schedule will be suitable for all awards and some clauses will require tailoring to meet the needs of a particular industry or occupation. Interested parties may also have additional proposals for providing flexibility.”

Related: High Court clarifies correct method for calculating leave

What does this draft schedule include?

  • Arbitration: employers seeking to make an arrangement under this schedule must consent to arbitration. 
  • Working from home: full-time, part-time and long-term regular casuals can request to work from home on some or all of the employee’s days of work. 
  • Compressed working week: permanent employees can request to compress their working week so that their weekly ordinary hours are worked over a reduced number of their usual work days. 
  • Leave: employees can purchase additional leave with their employer’s consent. Employees can also take twice as much annual leave at half pay with their employer’s consent.
  • Working hours
    • Employers can direct staff to stagger start and finish times.
    • Employees can collectively share a reduction in working hours when they cannot all usefully be employed (if at least 75 per cent of staff support this).
    • Permanent employees can change ordinary hours (if at least 75 per cent of staff support this).
  • Duties: employers can direct employees to perform all duties within their skill and competency, and also direct them to work at a different workplace (including the employee’s home).

The draft award flexibility schedule is also particularly relevant to small businesses because they are less likely to reach enterprise agreements that allow for flexibility.

According to ABS data, this would mostly entail employees in accommodation, food services and retail trade, who make up at least 40 per cent of small businesses.

These clauses will be piloted over 12 months.  The Commission will review the draft Schedule and invites interested parties to participate in the review.


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Ann Wen
Ann Wen
Ann is a journalist at Dynamic Business with a background in commercial law and research. She is interested in SME tax law, public policy and Australian innovation.