A recent Fair Work Commission (FWC) highlights the complexity and constraints for employers when faced with a flexible work arrangement request from an employee.
In the decision of The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police [2022] FWC, the FWC considered an employer’s refusal of a flexible work arrangement request based on ‘reasonable business grounds’ under section 65 of the Fair Work Act 2009 (Cth) (FW Act). Ultimately finding in favour of the employer’s decision, the decision is a timely reminder of the onus on employers to give due consideration to such requests and the importance of analysing and documenting the ‘reasonable business grounds’ relevant to the request.
Legislation change in this area is also imminent with the recent FW Act changes passed in late 2022 and effective in June 2023. You can read more about the changes here.
The Request
The employee was employed in the position of ‘First Constable’ within the Transit Safety Division of Victoria Police. The employment was on a full time basis and worked over five days with shifts of eight hours in length. Many of these shifts required the operation of large vehicles, including vans. In October 2022, the employee requested that his shift pattern be changed to four, ten hour shifts on the basis that he had family caring responsibilities (Request).
Once the Request was received, the employer engaged in discussions with the employee but could not come to an agreement. The employer then sent the employee an email stating that the employee’s Request had been refused. A further discussion occurred, leading to the employee requesting a formal response to the Request.
Victoria Police responded with its reasons which included:
- Chronic staff shortages: the employer was currently unable to meet its minimum workforce requirements due to having approximately 17% of its workforce on some form of leave, (or absence due to recreation or workers compensation);
- Division model: the working model of the Division in which the employee worked required 156 van shifts every fortnight. However, the Division was operating 120 shifts every fortnight; and
- Loss of productive work: the employee’s Request to change his working hours from five, eight hour shifts to four, ten hour shifts would result in a loss of two shifts per fortnight where productive work could be performed (because of the way the Transit officer shift structure operates with a mix of front line and other work each shift).
After the Request was refused, the employee made an application to the FWC to challenge the decision under section 65 of the FW Act.
The Legislative Framework
Under section 65 of the FW Act, employees are entitled to make requests for a ‘flexible work arrangement’ if the employee:
- is the parent, or has responsibility for the care, of a child who is of school age or younger;
- is a carer (within the meaning of the Carer Recognition Act 2010);
- has a disability;
- is 55 or older;
- is experiencing violence from a member of the employee’s family; or
- provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
The employer has an obligation to consider the request and must do so within 21 days of receipt of the request. A refusal of a request can only be based on “reasonable business grounds”.
In this case, the employee was eligible to request a flexible work arrangement due to his caring responsibilities (which included care for his wife and primary school aged children).
While section 65 of the FW Act provides guidance on what circumstances might be considered as ‘reasonable business grounds’ to reject a request for a flexible working arrangement, the list is not exhaustive. Those factors include:
- that the new working arrangements requested by the employee would be too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
In the Decision, the employee submitted that there were no reasonable business grounds for the refusal, stating that the employer had sufficient resourcing to perform the shifts that were required and that a loss of only two shifts every fortnight would have a “small adverse impact” on the employer’s operations. The employee also stated that he was willing to reasonably perform administration duties to make up for the two extra hours that he would have otherwise performed during each shift.
The Decision
In his decision, Deputy President Andrew Bell considered the operational impact of the Request and the fact that 17% of the relevant section of the workforce was on some form of leave, or absence due to recreation or workers’ compensation. The implication of that level of absence was that further accommodations were challenging when there was a shortfall of employees already. The shortfall was not the usual or ‘typical’ level.
In considering evidence on the impact of the Request, the Deputy President stated that:
“I do not accept [the employee’s] case that there existed sufficient resources to perform the requisite number of “van shifts”. The assumptions underlying the arithmetic concerning that issue are not reflected by the evidence of each witness called by Victoria Police. That evidence, which I accept, showed that there were clear shortfalls in available staffing levels, which were not merely transitory and were also well in excess of typical absences.”
The counterpoint was that if the ‘reason’ the employer points to deny such a request is something that is part of the ‘business as usual’ workforce features or factors, it will be harder to argue that it will meet the threshold to deny the request.
Turning to the impact that the Request would have in regards to the reduction of up to two shifts per week, the Deputy President stated the following:
“Even if it might be concluded that this would have little impact on Transit South’s overall operations, the reduction in productive work that could be performed by the individual officer (even if not equivalent to a full two shifts per fortnight) is non-trivial.”
The Deputy President also found that the employee would not be able to “routinely” perform sufficient productive work to make up the additional two hours a day he proposed.
The employer successfully defended the case.
Key takeaways
The case serves as a timely reminder for employers as they deal with an increasing number of flexible work arrangements, particularly following the changes in many workplaces after the pandemic and the transition to hybrid work environments.
Justifying a refusal of a flexible work request requires consideration and analysis. It is also important to document the decision making considerations and final decision as it may be necessary to rely upon in any legal challenge.
New FW Act changes will require employers to discuss such requests with employees and provide explanations for any refusal.
Other upcoming legislative changes on 6 June 2023 include:
- expanding the groups of eligible employees to those who experienced family and domestic violence or are pregnant;
- the requirement for an employer to communicate what changes or adjustments it was willing to make if the requested change is refused; and
- provide a new mechanism for dispute a rejection of such a request.
How we can help
For assistance with responding to requests for flexible working arrangements, or advice on your organisation’s obligations, contact our workplace relations team. Our team is well-placed to assist with practical and legal guidance for organisations seeking to balance their obligations to employees, and their operational and workforce needs.
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