WFH win for employers – with a compliance catch

The unions asked for a right, but didn’t get one.

The ACTU and ASU pushed for a right to request working from home, modelled on the National Employment Standards and weighted with a presumption in favour of approval. The Full Bench said no. On the evidence, most requests are already approved in whole or in part, and there was nothing to suggest employers are refusing on arbitrary or discriminatory grounds.

The finding that employers should read twice

The Commission found that many working-from-home arrangements already in place are likely non-compliant with the Award – specifically, the requirement to work ordinary hours continuously, the employer’s discretion over when ordinary hours are worked, and the prescribed timing of rest and meal breaks. In the Bench’s view, the gap between what the Award says and what workplaces actually do risks bringing the modern award system into disrepute.

The fix is a new clause 5A

An employee may request a working-from-home arrangement in writing. The employer and employee may then agree to modify those problematic provisions. The agreement must be in writing, made without coercion or duress, recorded in sufficient detail, and kept as a time-and-wages record.

Two things employers can’t afford to miss

A request under clause 5A will be a workplace right, which brings the general protections into play. And disputes regarding requests may be dealt with under the Award’s dispute resolution clause.

The Commission also refused to widen the spread of ordinary hours, indicating that doing so would likely fall foul of the new section 135A protections for penalty and overtime rates. That signal will shape award variation applications well beyond this case.

The key question for employers

Are your working-from-home arrangements documented, or just assumed? If the answer is the latter, now is the time to fix it. Citation Legal can review your current arrangements and you’ll be ready once this new clause takes effect.

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