Employers are arguing that administrative staff who work from home should forego entitlements like penalty rates, in a major test case that Australian Unions say will have a widespread economic impact.
The employers’ lobby, led by the Ai Group, is pursuing broad changes that would wipe out the female-dominated administration sector’s rights to overtime, penalty rates, rest periods and allowances if they sign on to have work from home arrangements.
The majority of clerical and administrative workers in Australia are women, with WGEA’s latest gender snapshot showing the sector is approximately 66 per cent female and 34 per cent male.
The submission to the Fair Work Commission, launched on Thursday, pushes for changes to the Clerks Award that would see administrative workers give up award conditions including hour requirements when working from home.
However, Australian Unions are warning the test case could set a new low benchmark for other modern awards if adopted in other sectors.
There’s also an argument that the proposal conflict with the Fair Work Amendment, which the federal government recently passed to protect penalty and overtime rates in modern awards.
The Commission could hear the working from home case as early as December this year, says Brigid Clark, a lawyer with expertise in employment and safety law.
“Unions have been critical of the proposal put forward by AiG in not providing safeguards as to when an employer can refuse a request for a flexible working arrangement in accordance with s65A of the Fair Work Act 2009,” says Clark.
“However, AiG submits that the proposal put forward by the unions would ‘substantially interfere’ with an employers’ ability to control when and where work is performed within their business.”
This means employer groups are concerned the union’s proposal would limit the fundamental right of the employer to determine how, when and where work is performed, Clark says, noting that employers want to ensure they can keep accurate records of overtime and start to finish times to comply with other provisions in the Clerks Award.
Secretary of the Australian Council of Trade Unions (ACTU) Secretary Sally McManus said the group is “alarmed by the sheer scale of the proposals from employers to remove over-time and other entitlements from admin workers.”
“Over time and penalty rates form part of people’s take-home pay and also protects workers from expectations from employers that they work unusual or excessive hours.”
McManus pointed out that the employer groups haven’t “put any real evidence” as to why they would need the changes laid out in the proposals.
“In our view they are using this as an opportunity to gain control over workers and to cut their pay,” she said.
“Employers are asking for an astonishing number of basic protections to be stripped away from workers, particularly part-time workers who are largely women and this will worsen the gender pay gap.”
According to WGEA’s 2023 snapshot, the gender pay gap for administrative workers is at 3.4 per cent.
“The basic protections at stake here are too important to have taken away and unions are calling on the Fair Work Commission to stop this employer bid to cut rights in exchange for work from home arrangements,” said McManus.
Echoing this sentiment, ASU Assistant National Secretary Scott Cowen said the test case “is about where people work, not when – employer groups are cynically trying to conflate the two in a bid to attack the pay and conditions of the lowest-paid administrative workers in the country.”
“Employer groups are ignoring the reality for hundreds of thousands of low-paid workers, mostly women, asking them to individually negotiate these kinds of unreasonable trade-offs with their boss.”
“These changes would force people, especially women, out of the workforce, making it even harder to manage childcare and other responsibilities.”
Citing a recent ASU workforce study that found 98 per cent of employees consider the right to work from home to be fundamental, Cowen said “we need to protect these rights which have improved and modernised workplaces across the country.”