"In a week of loopy union ideas to change how Australians work, the Australian Services Union's plan to force employers to give six months' notice to change work from home arrangements is perhaps the loopiest yet," said Innes Willox, Chief Executive of the national employer association, Australian Industry Group.
"They clearly have no idea how businesses have to operate, be responsive to customer or market needs or work collaboratively with their workforce. Coming a day before a summit on boosting the nation's productivity, the reported proposal becomes even more ludicrous.
"The proposal is not only entirely unnecessary and unreasonable, it would inevitably operate to discourage employers from continuing to adopt an accommodating approach to employee requests to work from home.
"It cannot seriously be denied that employers already overwhelmingly adopt a flexible approach to granting working from home requests. An independent survey of employers and employees undertaken at the Fair Work Commission's request as part of the current proceedings found that 94% of employees who asked for working from home arrangements had their request approved or partly approved.
"The Fair Work Act already gives employees the right to request flexible working arrangements, including working from home, in a range of circumstances. Employers can only reject these requests on reasonable business grounds. These rights were significantly enhanced during the last term of parliament with the Commission being given new powers to resolve disputes over any rejection of such requests by ordering the employer to grant them.
"The Commission has already demonstrated a willingness to use these new powers to order employers to accommodate flexible work requests but there is no evidence that employers are unreasonably refusing working from home requests.
"Nonetheless, the inescapable reality is that some jobs simply can't be done effectively remotely. In those limited occasions where requests are refused, the most common reason is that the job simply cannot be performed at home.
"A simplistic requirement that employers give six months' notice of any expectation that workers actually come to the office will certainly cause many employers to hesitate before agreeing to trial working from home arrangements out of fear that they won't be able to require a return to the office in a reasonable timeframe if circumstances change or the arrangement is proving to be unworkable.
"To be clear, the ASU proposal will force employers to refuse to offer workers the flexibility they want.
"The proposal also ignores the reality that if an employer has given a worker a commitment to allow them to work from home on an ongoing basis, they simply cannot force that employee to return unilaterally under existing laws.
"Sadly, the ASU has missed the point that the Commission proceedings are directed at developing a clause for the Clerks award that facilitates employers and employees making workable arrangements for working at home and, importantly, removes any existing award impediments to such arrangements. They don't seem to even acknowledge that we need to make awards more flexible if we want to let employers implement working from home arrangements.
"There is a burning need to vary awards so that they reflect the reality of the flexible way that many employees want to work when working remotely. The awards were written at time when it was assumed that, by and large, work occurred at the employer's premises. Awards haven't yet caught up with the seismic shift in the reality of the way that people work following the Covid-19 Pandemic.
"The Australian Industry Group's intention is to constructively propose that the Commission vary the Clerks Award, and indeed many other awards, to include a model clause that permits employees and employers to agree to vary terms of the award as part of their implementation of working from home arrangements.
"We want employers to be free to work with employees to structure their working hours in a way that suits them. This isn't about cutting existing entitlements, but it does need to be recognised that the current award terms aren't fit for purpose.
"If an employee wants to take breaks in the day to attend to personal matters while working from home and their employer agrees, why shouldn't this be allowed? Similarly, if an employee wants to take time off during the day and chooses to instead work those hours earlier in the morning or later in the night, why shouldn't an employer be able to agree to this without needing to pay the employee costly penalty rates as a consequence? We know this is how employees want to work and how many already are, but the awards don't yet reflect this.
"There will of course need to be appropriate protection accompanying any new flexibilities. The Australian Industry Group had been keen to constructively work through what safeguards any new award term should include with the ASU and ACTU. Unfortunately, these confidential negotiations had to be abandoned following a leak of their content to the media. That extremely inappropriate development was described in a public statement by the Full Bench handling the proceedings as 'unethical and dishonourable' conduct.
"Ultimately, it must be remembered that the Fair Work Commission is considering how to remove impediments to employers implementing working from home arrangements. The last thing we should be doing is developing new ones. It is baffling that the union can't recognise that the heavy-handed approach of saddling employers with another layer of regulation under our already notoriously complex awards will only hurt the workers they should be trying to assist.
"We need to look at how we can make it easier for employers to implement remote working arrangements, not create new reasons for employers to refuse these kinds of requests," Mr Willox said.
