[2013] FWC 5 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements
Australian Municipal, Administrative, Clerical and Services Union
v
Brimbank City Council
(C2011/6048)
VICE PRESIDENT LAWLER |
SYDNEY, 2 JANUARY 2013 |
Alleged dispute concerning Brimbank Council refusing to grant one day off per fortnight as an ongoing flexible working arrangement.
[1] This is an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) by the Australian Municipal, Administrative, Clerical and Services Union (Union) to deal with a dispute.
[2] The dispute relates to the refusal of applications by three of employees of Brimbank City Council (Council) for alternative flexible working arrangements in accordance with clause 20 of the Brimbank City Council Enterprise Agreement 6, 2010 (Agreement).
[3] Clause 20 provides:
“20. ALTERNATIVE FLEXIBLE WORK ARRANGEMENTS
20.1 Any flexible work arrangement that is agreed between a manager and an employee or a work unit is a stand alone agreement and shall not be considered as a precedent or as an acceptable business case for any other flexible work arrangement that another employee or work unit seeks with their manager. Any flexible work arrangement sought must be based on the individual needs of the employee and the operational requirements with the work unit of the employee seeking the flexible work arrangement
20.2 An employee or work unit may request to work an alternative flexible work arrangement in place of their current hours of work arrangement, to support their work life balance.
20.3 Such a request may include, but is not limited to, changes to start or finishing times (eg. starting later or finishing earlier each day).
20.4 Flexible work arrangement requests will be considered and subject to approval by the employee's/work unit’s manager. All requests for a flexible work arrangement may only be refused on reasonable grounds related to the effect on the workplace. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.
20.5 As well as the ability to request an individual flexible work arrangement in accordance with this clause, Council also offer a number of other flexible work arrangements which are outlined in Section 5, Part A of this Agreement.
(underline emphasis added)
[4] Each of the employees sought a flexible working arrangement that would allow them to work a nine day fortnight with a rostered day off each fortnight. Each worked in the People and Culture Team (Team) of the Council - the role of that Team is to provide human resources services to the Council as a whole – more than a thousand employees. The Council, the Team manager, Ms Scarfo-Williams, refused each of the applications. The matter was referred to Fair Work Australia (the Tribunal) pursuant to the dispute resolution procedure in the Agreement for arbitration, the matter being unable to be resolved in conciliation.
[5] The parties are agreed that under the dispute resolution procedure the Tribunal is empowered to arbitrate the dispute and determine whether Ms Scarfo-Williams properly decided to refuse the requests. Subject to construction arguments advanced by the Council, the parties are agreed that the Tribunal has jurisdiction, in resolving the dispute, to determine whether there were in fact reasonable grounds to refuse the requests within the meaning of clause 20.4 and thus whether the requests should or should not be granted.
[6] The ASU contends that the requests were made in accordance with clause 20 and that there were no reasonable grounds related to the effect on the workplace to refuse the requests.
[7] The Council advanced construction arguments. It contended that on the proper construction of the Agreement a request for a nine day fortnight with RDO is not an alternative flexible work arrangement that can properly be requested under clause 20. Alternatively, the Council contended that there were reasonable grounds related to the effect on the workplace to refuse each of the requests.
[8] The Council placed emphasis on the fact that during the negotiations for the Agreement the ASU had advanced a specific claim for employees to have a right to work a nine day fortnight with a rostered day off each fortnight. That claim had been explicitly and firmly rejected by the Council. Plainly enough, clause 20 was a product of the negotiations on the topic flexible work arrangements and represented the compromise reached between the parties.
[9] In my view the meaning of clause 20 is plain and free from relevant ambiguity.
[10] Clause 20.2 authorises an employee or work unit to request an alternative flexible work arrangement in place of their current hours, “to support their work life balance”. The Agreement does not define the expression “alternative flexible work arrangement”. Clause 20.3 specifies matters that the expression must be taken to include, but is not limited to.
[11] Pursuant to clause 20.4 the employee or work unit’s manager must consider the request and decide whether to approve it. However, the manager may only refuse a request “on reasonable grounds related to the effect on the workplace” and, consequently, must approve the request in the absence of such “reasonable grounds”.
[12] Clause 20.4 provides a non-exhaustive, indicative list of the grounds on which a request may reasonably be refused because of adverse effects of the proposal in the request on the workplace: “such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.” Clause 20.1 provides further guidance on objects of clause 20: “Any flexible work arrangement sought must be based on the individual needs of the employee and the operational requirements with the work unit of the employee seeking the flexible work arrangement.”
[13] Taking the practical approach mandated by the authorities, I am satisfied that a nine day fortnight with a rostered day off each fortnight is undoubtedly a “flexible work arrangement” and, in the case of any employee not working a nine day fortnight, would be an “alternative flexible work arrangement” within the meaning of clause 20.
[14] Moreover, in my view clause 20 was intended to have a practical operation and requires the manager to weigh the personal circumstances relied upon by the employee against the extent of cost and impact on the business of allowing the request.
[15] Almost all requests under clause 20 will result in some cost, loss of efficiency or adverse impact on customer service, even if only very small. Any change to hours will see the employee unavailable at a time he or she would previously been available with the need (and consequent resource cost) for another employee to deal with urgent requests or telephone calls that the requesting employee would otherwise have taken, or the need to redo a roster or the like. If it was sufficient for the Council to simply point to any cost or business difficulty, however small, and then rely upon that as constituting a reasonable ground to refuse the request, the practical right intended by clause 20 would become illusory. Such an approach is inconsistent with the flavour of clause 20 read as a whole and inconsistent with the principles of construction.
[16] On the proper construction of clause 20, it is necessary for the Council to point to some cost or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work life balance.
[17] The Council placed reliance on the fact that:
• work patterns for different areas of the Council are expressly specified in clause 19 and the associated tables A, B and C; and
• Section 5 of Part A of the Agreement, covering clauses 35 to 40, is entitled “Flexible Work Arrangements” and deals with a number of different specific flexible work arrangements but not any RDO arrangement.
[18] The Council argued, by reference to the Latin expression expressum facit cessare taciturn, that the absence of any reference to rostered day off arrangements in Section 5 of Part A, and instead a specific provision for such arrangements in 19 and its associated tables should be regarded as indicating an intent to codify the arrangements for rostered days off within various parts of the Council such that no RDO arrangement can be requested pursuant to clause 20. I am not persuaded by that argument. It takes an overly technical approach to the construction of the Agreement of the sort that that is counselled against in the authorities. The classic statement of principle, well established as applicable to the construction of industrial agreements, is from Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
[19] The manifest intent of clause 20 is to provide alternative flexible work arrangements to those specified elsewhere in the Agreement. That is brought home particularly by the language of clause 20.2: “An employee or work unit may request to work an alternative flexible work arrangement in place of their current hours of work arrangement”. That “current hours of work arrangement” is as specified elsewhere in the Agreement, including for various employees, in clause 19. The fact that clause 20 does not appear in Section 5 of Part A and instead follows clause 19 only serves to underscore the practical interpretation of clause 20 that gives effect to the ordinary meaning of its broad words.
[20] The presence of clause 20 in the Agreement demonstrates that the parties intended that there should be a genuine and substantive right to seek alternative flexible working arrangements and that such arrangements should be accepted unless they could be refused because of the adverse effects in the workplace. The importation of the standard reasonableness necessarily connotes a weighing of any adverse impact against the personal circumstances and legitimate work/life balance aspirations of the employee that grounded their request.
[21] The Council also submitted that the requests amount to an extra claim contrary to the “no extra claims” clause in the Agreement. I reject that argument. Clause 20 authorises an employee to make a request for flexible working arrangements. A request made in accordance with that clause is an exercise of a right conferred by the Agreement. It is not a fresh claim contrary to the “no extra claims clause.”
Was the refusal of the requests unreasonable?
[22] Having rejected the Council’s construction arguments, I proceed to consider the merits. The ASU, on behalf of the employees, submits that the Council must consider each application on its merits and is not entitled to refuse the application unless there are “reasonable grounds related to the effect on the workplace” which the Union contends has not been established by the Council in respect of any of the employees. As noted, the Council contended that there were reasonable grounds related to the effect on the workplace to refuse each of the requests.
[23] As the manager of the Team, Ms Scarfo-Williams has responsibility for managing resources and staff allocation within the Team. The Team is customer service orientated and provides internal services to other Council departments. Functions are often time critical and staff are frequently required to attend meetings. 1
[24] It was Ms Scarfo-Williams’ evidence that the team does not have excess capacity, as reflected by a temporary agency staff member engaged to cover an extended employee absence. 2 Ms Scarfo-Williams acknowledged relying on the cumulative effect of the three applications as increasing the covering tasks of present employees, taking them away from their core tasks and reducing efficiency.3 Ms Scarfo-Williams accepted that she was also concerned about the potential precedent set by granting the request.4 Ms Scarfo-Williams outlined the working arrangements of employees with the Team, which includes four part-time employees, six employees with a 19 day month and one employee with a nine day fortnight that is a grandfathered entitlement.5
[25] A meeting was held on 19 July 2011, and a follow up meeting was held on 2 August 2011. The meetings were attended by Ms Borg, Mr Girotto and Ms Scarfo-Williams, among others. Ms Marriott was absent from work ill and did not attend the meetings. At the 19 July meeting, the employees outlined their reasons for the request, and explained why they believed it would not impact on their performance, or that of the Team. 6
[26] At the 2 August meeting, Ms Scarfo-Williams explained that following consultation with the Senior Management Team, a fixed and permanent nine day fortnight for Ms Borg and Mr Girotto was refused. Rather, the Council was prepared to vary hours on a permanent basis or agree to a nine day fortnight for a fixed period. Ms Marriott’s request was not considered because no reasons had been received from her. 7
[27] At the 2 August meeting, Ms Scarfo-Williams provided reasons for refusing the requests and provided them in writing in a letter dated 16 August 2011. 8 In summary, the reasons were:9
[28] Ms Scarfo-Williams accepted in cross-examination that a more satisfied workforce leads to greater productivity. 10
[29] Ms Scarfo-Williams expressed a view that a nine day fortnight would negatively impact on the work of the employee when they return. However, in cross-examination she accepted that employees are likely to get through the same number of tasks as they will continue to work the same number of hours. 11 Ms Scarfo-Williams identified that it was likely the additional hours were outside Council’s core hours, whereas her preference was that employees are available during the core hours.
[30] In order to provide a high quality and efficient customer service, it is Ms Scarfo-Williams’ preferred position that a person answers the phone so that another employee may be able to assist immediately. 12 Ms Scarfo-Williams said it was likely that voicemail could be set up, but was unsure of the cost or details.13 Ms Scarfo-Williams accepted that the payroll department, also a customer service based department, uses voicemail.14
[31] There was also hearsay evidence in respect of Ms Date (Ms Marriott’s direct manager) that Ms Date supported refusing the request. 15 I attach reduced weight to that hearsay evidence because it was unable to be tested in cross-examination.
Ms Lynne Borg
[32] Ms Borg has the role of Injury Management Coordinator. She generally performs that role autonomously. 16 Ms Borg stated that work matters rarely require her immediate attention.17 Ms Borg gave evidence that a return to work plan question may require an answer on the day, but that would be a simple exercise of checking the return to work plan folder.18
[33] Ms Borg also asserted that she was not aware of problems that flowed from her current 19 day month arrangement or 50/52 arrangement. 19 Ms Borg does not brief other employees when taking an RDO or leave in accordance with her 50/52 arrangement.20 As Ms Borg would continue to work 144 hours a fortnight, she considered there would be no cost to the Council as it would not need to provide relief staff.21 Ms Borg is not replaced while absent due to an RDO, 50/52 arrangement or annual leave, with Mr Carrick assuming her duties.22 Ms Borg gave evidence that the current 50/52 arrangement provides for an additional 10 days leave per year. She stated this arrangement would cease if she could access a nine day fortnight, thus resulting in a net increase of two additional days leave per year.
[34] In her Statement in Reply, Ms Borg explained that she meets with Mr Hellard fortnightly to discuss all compensation claims against the Council, as well as providing a record of claims and the current activity for each claim. 23 In cross-examination, Ms Borg elaborated on the meetings and stated that although she tends not to provide detailed comments for each case, she does advise of the latest action in relation to the claim.24
[35] Ms Borg asserted that either Mr Hellard or Mr Carrick, who previously covered her duties for a period of 4 weeks, could handle any urgent enquiries. 25 Ms Borg also raised the possibility of training up the Trainee employee, who might be able to assist with basic enquiries.
[36] Ms Borg affirmed to having highly developed time management and planning skills, as reflected by her latest performance review. 26 In cross-examination, Ms Borg asserted she had never had a problem complying with the strict Accident Compensation Act timeframes.
[37] In relation to customer service, Ms Borg estimates taking 15 calls each day, with five-ten being enquiries directly to her and five calls being for other employees. Calls within this latter group are answered on the basis that when not picked up by the intended recipient, the call diverts to other Workplace Relations and Safety Team employees in a designated pattern until answered. 27 It is Ms Borg’s evidence that in the occasional instance that there are no employees in another work group within People & Culture, she may answer their phone.28
[38] Ms Borg noted that a voicemail system is operational in the Payroll area. 29 Ms Borg is also prepared to take the proposed RDO on any day of the week.30
[39] Ms Scarfo-Williams stated that as the sole Injury Management Coordinator, it is Ms Borg’s duty to manage Council’s Return to Work program, WorkCover and rehabilitation responsibilities. 31 These specialised responsibilities involve liaising with internal and external stakeholders.
[40] Ms Scarfo-Williams gave evidence that generally another employee couldn’t assist a query relating to one of Ms Borg’s key functions. 32 Customers would not receive a timely response and a backlog would ensue.33
[41] Ms Scarfo-Williams stated that while the Council can accommodate an RDO every 19 days, a nine day fortnight would potentially require a replacement employee. But the specialised and crucial nature of the role and the incompatibility of a job share arrangement considering a need for only two out of 20 days.
[42] Ms Scarfo-Williams accepted that Mr Hellard had a detailed understanding of the WorkCover process, with Mr Carrick having a lesser understanding. Although Mr Carrick covered Ms Borg’s role during her absence from December 2010 to January 2011, 34 Ms Scarfo-Williams stated Mr Carrick was largely unable to cover Ms Borg’s flexible work absences as he works one day a week at a different location and works out of the office more than he works inside the office.35
[43] Mr Hellard commenced employment covering a maternity leave position at the Council during March 2011. He works three days a week; Tuesdays, Thursdays and Fridays. Mr Hellard states that a summary of the current status of matters (two lines maximum) is provided by Ms Borg during their fortnightly meetings. This does not extend to specific tasks or return-to-work programs.
[44] Mr Hellard stated the nature of an urgent query is generally an insurer calling the employer’s responsible officer, being Ms Borg in this case, at the end of the defined time period. 36 The urgent advice generally required by the insurer is as to factual matters within the matrix of a claim.37
[45] Mr Hellard gave evidence regarding one urgent query that he dealt with due to Ms Borg’s absence, which would have been more efficiently addressed by Ms Borg since commencing with the Council in March 2011. 38 An insurer required a same day response regarding the duties of the employee prior to the injury. While Mr Hellard states that Ms Borg could have dealt with the query more efficiently, he was not sure whether Ms Borg would have been able to clarify it further.39 Mr Hellard reckoned that this task took him a couple of hours to complete. Mr Hellard estimated that there were half a dozen to a dozen other urgent instances.40
[46] Mr Hellard gave evidence that despite he has multiple subordinates in workplace relations and safety, whereas only Ms Borg deals WorkCover. 41 Mr Hellard did not believe Mr Carrick could provide adequate assistance on WorkCover claims.42 That evidence is contradicted by the fact that Mr Carrick covered Ms Borg’s role during extended absence on annual leave and there was no specific evidence of difficulties being encountered by Mr Carrick in performing the role.
Mr Jarrod Girotto
[47] Mr Girotto is employed as a Human Resources Officer. He seeks a nine day fortnight with his RDO on a Friday. His two key responsibilities are assisting the HR Services Team with recruitment and assisting with the Council’s corporate training program. 43 Mr Girotto estimates that each of these duties separately consumes about 40% of his time and the remaining 20% is spent on general administrative duties.44
[48] Ms Scarfo-Williams stated that Mr Girotto’s role is broader than the main functions he described in his statement, as reflected in his position description. Ms Scarfo-Williams outlined the administrative functions only undertaken by the HR Officer: 45
[49] In relation to finance purchasing orders, where Mr Girotto is absent for an extended period, alternative arrangements have to be made with the Finance Department. This task can only be completed by persons who have obtained a police check clearance, with potential training costs associated. 46
[50] In relation to his administrative duties Mr Girotto stated it would be a rare occurrence for matters to require immediate attention on a Friday because:
[51] Mr Girotto gave evidence that there are generally only two special departmental meetings a year, and that staff identification badges and loading documents on the intranet only take a very minimal time to prepare. I accept Mr Girotto’s evidence that these tasks are not so time sensitive as to be compromised by him working a nine day fortnight.
[52] Ms Scarfo-Williams’ phone diverts to Mr Girotto if she is away from her desk and he has access to her calendar for the purpose of knowing where Ms Scarfo-Williams is and informing Ms Scarfo-Williams of his upcoming leave. Mr Girotto stated that other employees also had access to Ms Scarfo-Williams’ diary.
[53] Mr Girotto stated his work role is largely autonomous. 48 Mr Girotto stated that he is able to plan work ahead. Corporate training is not conducted on Mondays or Fridays. Training enquiries are generally dealt with at the beginning of the week.49
[54] Job vacancies close on Sunday evenings. Mr Girotto states that recruitment enquiries are at a minimum on Friday, and are often from prospective candidates of a position that closes on the Sunday. 50 Mr Girotto considered that these queries were predominantly of a general nature such as salary range and location of work.51 Mr Girotto is the employee with the most detailed knowledge of current vacancies and applications received. But it was Mr Girotto’s evidence that the HR advisers are aware of the jobs advertised, having liaised with departments regarding the advertisement and position description.52
[55] Based on his experience, Mr Girotto considered that Fridays were the quietest day of the week, few calls were received on Fridays, and that he would deal with 1-5 calls and 1-2 walk-ins on a Friday. 53 It is rare that he receives email or phone queries that require an urgent response.54
[56] Mr Girotto identified the only impact on customer service is where a caller wishes to speak with him on a Friday, when he is on an RDO. 55 Mr Girotto gives similar evidence to Ms Borg, in that a message can be taken by other employees, or a voicemail feature could be installed on telephones.
[57] The People and Culture Team share responsibility for answering phone calls. For phone diversion purposes, Mr Girotto’s phone is placed in a cycle of three other employees who will answer it. 56 He gave evidence that Mr Monaghan has agreed to Mr Girotto’s calls being diverted to him for the additional RDO per month.57
[58] Mr Girotto believes that working longer hours during earlier days of the week would increase his efficiency in preparing the file for the selection panel. 58 Mr Girotto states that he is not concerned about any back-log flowing from the proposed RDO arrangements.59
[59] Mr Girotto does not believe a scheduled meeting would not go ahead due to understaffing caused by the taking of an additional RDO a month. He is not aware of the current RDO arrangements having any such impact. 60 More broadly, Mr Girotto is not aware of problems that flow from his current 19 day month arrangement.61
[60] It is Ms Scarfo-Williams’ expectation that Mr Girotto will answer her phone if she is unavailable, based on the position description and the fact the phone defaults to Mr Girotto. 62 Ms Scarfo-Williams noted that Mr Girotto has access to her calendar for the purpose of knowing where Ms Scarfo-Williams is and to record his upcoming leave.63
[61] Ms Scarfo-Williams’ most significant concern was the impact on customer service. She cited the inefficiencies within the Team and longer response times that are caused by an employee having to respond to an enquiry of Mr Girotto in his absence. Ms Scarfo-Williams stated that this would particularly impact the HR Advisers. 64 This delay would be caused by an employee having to answer Mr Girotto’s phone and searching for the relevant information, which detracts from the other employee’s primary duty.65 Ms Scarfo-Williams considered that there would still be interruption of an employee, and delay across the Council if a message was taken.
[62] While Ms Scarfo-Williams acknowledged the team could cover Mr Girotto’s absence on an ad hoc basis, this did not extend to a nine day fortnight. In November 2010, Jim Monaghan informed Ms Scarfo-Williams that the HR Advisers’ workload increases when Mr Girotto is on leave. Under cross-examination, Ms Scarfo-Williams accepted the concern was in the context of annual leave absence. 66 It was subsequently agreed that Mr Girotto will be replaced for absences of three days or more.67
[63] Ms Scarfo-Williams stated that Mr Girotto is the only employee with knowledge of the current status of advertised positions. 68 Ms Scarfo-Williams accepted that there would be times when it was appropriate for the customer to be informed that the responsible person was absent, and would call tomorrow.69 If there was a pressing inquiry as to whether an application had been received, although Ms Scarfo-Williams did not have a detailed knowledge of the operational level, she accepted that all that would typically be required is to check the recruitment file.70 And Ms Scarfo-Williams accepted that all applications go on the job application file. Team members know where the job application file is kept.71
[64] Ms Scarfo-Williams also stated that Mr Girotto is solely responsible for the administrative requirements of training. The part time Training & Development Advisor, who would ordinarily be able to answer training queries, does not work on Fridays. Ms Scarfo-Williams asserted that there had been instances where the Senior Workplace Planning & Development Advisor had encountered difficulty chasing up the information. 72 However, Ms Scarfo-Williams could not provide a specific example of an urgent enquiry in relation to training.73
Ms Jennifer Marriott
[65] Ms Marriott is employed as a Human Resource Advisor. Her duties include advising and participating in the recruitment process, including assistance with position descriptions, and responding to queries from employees regarding awards, agreements, policies and procedures.
[66] Ms Marriott gave evidence in similar terms to Ms Borg and Mr Girotto in relation to not being aware of any problems from the 19 day month arrangement and that a voicemail system could be introduced. 74 Ms Marriott is happy to ensure that she does not take the RDO on the same day as Mr Monaghan, Ms Borg and Mr Girotto.75
[67] Ms Marriott stated that the majority of her work is undertaken autonomously and she has never had a concern in relation to managing her workload. Following Ms Marriott’s unexpected absence from work for a period of three months, arrangements were introduced to minimise disruption to the Council. 76 Ms Marriott submitted that selection process can be planned in advance and that queries from Council employees rarely require an urgent response.77
[68] Ms Marriott takes on average 10 to 15 calls per day from Council employees. 78 Mr Monaghan performs the same tasks as Ms Marriott and each can perform the other’s duties. However, they have responsibility for different parts of the organisation.79 A handover sheet is completed prior to a day off, which ensures urgent matters are completed.80 In the first instance, Mr Monaghan and Ms Marriott’s phone diverts to each other. Mr Monaghan could provide assistance to queries, especially as Mr Monaghan and Ms Marriott switched departments about a year ago. Ms Date could also assist in Ms Marriott’s absence.81
[69] Meeting and drop-ins are generally planned in advance, 82 with the significant proportion of Ms Marriott’s duties performed in the office. Ms Marriott does not believe an additional RDO will affect the team’s ability to schedule meetings, or for Ms Date to attend offsite meetings,83 as there are ordinarily four to five employees in the office at any time.84
[70] In light of the fortnightly cycles in which work is organised and completed, Ms Borg stated that taking the RDO early in the week would allow her ample time to complete her recruitment and payroll duties. 85
[71] Ms Scarfo-Williams stated that no formal request was received from Ms Marriott earlier in the year and as such the decision to refuse the request has only been made in response to Ms Marriott’s witness statement dated 19 July 2011. 86
[72] Ms Scarfo-Williams asserted that the HR Adviser position was very busy, with weekly deadlines that alternate between uploading payroll changes and job advertisement completion. 87 Along with the recruitment manager, HR Advisors are responsible for all job applications until the position is advertised.88
[73] Ms Scarfo-Williams’ statement expressed her view that increased absence due to a nine day fortnight would ‘tip that balance’ and unreasonably impact service delivery, productivity and efficiency. 89
[74] In relation to payroll, Ms Scarfo-Williams could not refer to an urgent query. 90
[75] While Ms Scarfo-Williams accepted that the other HR Advisor, Mr Monaghan, and team leader, Ms Date, can provide assistance outside of their designated Council areas she considered that Mr Monaghan and Ms Date are not aware of particular matters.
[76] Ms Scarfo-Williams alleged Ms Date, Ms Marriott’s manager, has experienced dissatisfaction from clients due to Ms Marriott’s absence. This has included inability to locate time critical documents, such as employment contracts that need to be signed. 91 A specific example during a planned absence was the omission of a document from a position advertisement. This was missed by the handover and Ms Scarfo-Williams asserts the HR Advisor had to spend a considerable amount of time to rectify, which included questions of Ms Date and Ms Scarfo-Williams.92
[77] Customer complaints were received in July 2011 that Ms Marriott wasn’t completing work within desired timeframes. This led Ms Date to direct Ms Marriott to respond immediately to customer enquiries and estimate the time for resolution. While Ms Scarfo-Williams accepts this is currently working well, a nine day fortnight would not assist.
[78] Ms Scarfo-Williams gave evidence that a nine day fortnight would adversely impact Ms Marriott and Mr Monaghan, by increasing their workloads and taking them away from their work. 93 Ms Scarfo-Williams did not discuss the request with Mr Monaghan.94 Ms Date often has meetings offsite for which scheduling would be compromised as the proposal would see only one HR Advisor at work for four out of 20 days.95
[79] Ms Scarfo-Williams contended that considerable stress is experienced by the HR Services team when either Mr Monaghan or Ms Marriott is on an RDO. 96
Conclusion
[80] It was clear from the evidence that the parties had very different views of the intent of clause 20. In summary the Council, through its relevant manager, Ms Scarfo-Williams, took the view that the ASU’s bargaining claim for a right to work a nine day fortnight having been rejected during negotiation for the Agreement, clause 20 was consistent with a broad discretion in the Council to refuse an application because if there was not such a broad discretion clause 20 would have the practical effect of allowing a claim that had been so emphatically rejected by the Council during bargaining for the Agreement.
[81] Indeed, while Ms Scarfo-Williams gave evidence on matters relating to the adverse impact on the Team’s business if the requests were granted, she in fact regarded a request for a nine day fortnight as not available under clause 20. Ms Scarfo-Williams believed, honestly but incorrectly, that the ‘specific intent’ of the right to request a flexible work arrangement clause was not to alter the RDO arrangement provided for in clause 19. 97 It is instructive that in cross-examination she could not proffer circumstances where she would consider it reasonable to grant a nine-day fortnight, acknowledging that any absence has an adverse affect on the busy department.98 In so far as defending her decision to reject the requests, the impression left by her evidence, as evident on the face of the transcript, is that Ms Scarfo-Williams regarded herself as entitled to refuse an application if she could identify any adverse effect in an application for flexible working arrangements that impacted on cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service, no matter how small. For the reasons given, that is not a correct approach.
[82] I do not wish these reasons to be seen as being unduly critical of Ms Scarfo-Williams. She has a difficult job as manager of the People and Culture Team and had an honest if mistaken view of the effect of clause 20. I consider that she made her decisions conscientiously on the basis of that honestly held view albeit that she also struck me as overly prepared to make sweeping assertions of adverse effect that she could not support with particulars when pressed in cross-examination.
[83] Ms Scarfo-Williams was also concerned, and understandably so, that if she were to allow the application of one employee then by virtue of comparison of circumstances she would be obliged to accept the application of all employees. A gloss on that argument was to the effect that the Council is entitled to take account, when considering any given application, the likely adverse impacts of other employees who can mount at least as compelling a case then also seeking the same flexible working arrangements. Whilst it may be possible to readily accommodate the flexible working arrangements for one such employee, there are serious adverse effects if all employees have the arrangement. However, the opening sentence of clause 20.1 makes it clear that the fact a request has been granted to a particular employee does not provide a ground for another employee having a similar request granted.
[84] I consider it of considerable significance that that none of the three requests would involve the employee working less time or doing few tasks. Ms Scarfo-Williams accepted in cross-examination that employees are likely to get through the same number of tasks as they will continue to work the same number of hours. 99
[85] Two of the employees already have the benefit of the 19 day month provided for in clause 19, Table A. The Team already has to deal with the problems and costs of covering for those employees during core hours when they are absent on an RDO each month. Their request seeks an RDO each fortnight rather than a single RDO each month. Putting aside the evidence of Mr Hellard in relation to Ms Borg, and a single example in relation to Ms Marriott, there was a conspicuous absence in the evidence of the Council of particular or compelling examples of costs or difficulties caused by either of those employees being absent on an RDO under the existing arrangements in the Team (which also includes three part time employees and one employee with a grandfathered right to a nine day fortnight).
[86] Although it is inevitable that granting any or all of the three requests will cause some difficulty managing the work of the Team, on the evidence before me that impact will be very modest in the case of Ms Borg, and Ms Marriott and almost non-existent in the case of Mr Girotto because of the pattern of work in his role.
[87] Dealing first with Mr Girotto, I accept his evidence as to his pattern of work and that his proposed arrangement is likely to assist rather than harm the efficiency of his role. I am satisfied that any queries of the sort that may need to be fielded in his absence (of which there are relatively few) can be dealt with by taking a message or a simple inspection of the relevant file. In the case of Mr Girotto, even though he relies upon no particular personal circumstances beyond seeking a better work life balance, I consider that the difficulties presented by his request are at that background level that exists in relation to all or almost all requests and consequently there are no reasonable grounds to refuse that request and it should be granted.
[88] Ms Marriott put forward cogent personal circumstances in support of her request including a desire to be more involved in the school life of her children and the fact that her father worked weekend shifts with the result that she could not see him on weekends and therefore sought to arrange a weekday RDO when she could contribute more to the children’s schooling and spend some time with her father. I accept Ms Marriott’s statement evidence as to the effect of her request on workplace. 100 Ms Marriott’s role is such that the adverse effects of her proposal will be largely limited to the need for persons to take messages. I consider that the instances of difficulty specifically identified by the Council are very modest problems and I am not prepared to act on Ms Scarfo-Williams evidence on the broader effects of the proposal on the Team. I consider that there are no reasonable grounds to refuse Ms Marriott’s request and it should be granted.
[89] Ms Borg has the most compelling personal circumstances of the three employees relating to a son with particular needs and the demands of vocational study that she is undertaking. The evidence of adverse impact from a request is most pronounced in her case. However, I am satisfied that it was overstated by Council witnesses. Ms Borg is the Injury Management Coordinator. In that role she has to respond to inquiries from workers compensation insurers that sometimes require an urgent response. Mr Hellard gave evidence of a specific instance when he had to deal with an urgent request while Ms Borg was absent on an RDO and of the inefficiency associated with having him attend to the request. He referred to other occasions. I have reservations about Mr Hellard’s evidence and do not find it credible that Ms Borg’s absence would give to problems of the magnitude he suggested. After all, in a properly managed workplace, it is necessary to have persons with backup competencies to allow the business of the workplace to continue functioning in the event of an unexpected absence of the relevant employee. Mr Carrick has performed that role in the past and there was no evidence that his performance was unsatisfactory. While it is inevitable that granting Ms Borg’s request will lead to occasions when Mr Hellard or another specialist member of the Team will need to respond to an urgent query that would otherwise be dealt with by Ms Borg if she was not absent on an RDO, I am not persuaded that that situation will arise with the frequency asserted by Mr Hellard or that that the adverse effect of those occurrences is of such a magnitude as to render it reasonable to refuse the request given the personal circumstances on which Ms Borg relies. I prefer the evidence of Ms Borg on the nature of the impact of her request on the workplace. I think it particularly significant that Ms Borg’s request also involves ceasing her current 50/52 arrangement resulting in a net increase of two days absence over a year. The net adverse effects will be very small indeed. Accordingly, I consider that there no reasonable grounds to refuse Ms Borg’s request and it should be granted.
[90] In relation to each of the requests, Ms Scarfo-Williams stated that it was not the Team’s practice to contact staff on leave. 101 It would be reasonable for Ms Scarfo-Williams to impose as a condition of granting each request that the employee agrees to being contacted by telephone to assist remotely in the location of the file or material that is necessary for another employee (like Mr Hellard in the case of Ms Borg) to answer an urgent request that cannot await the employee’s next working day.
[91] For the reasons I have given, as private arbitrator I determine that the requests for flexible working arrangements made by each of the three employees be granted.
VICE PRESIDENT
Appearances:
E Burgio with R McGregor for the Australian Municipal, Administrative, Clerical and Services Union.
R Jackson with M Nicolazzo for Brimbank City Council.
Hearing details:
2011.
Melbourne:
November 2.
1 Exhibit A, [6]-[7]
2 Exhibit A, [7]
3 PN576
4 PN582
5 Exhibit A, [8]-[10]
6 Exhibit A, [17]-[25]
7 Exhibit A, [27]
8 See JS-6
9 Exhibit A, [26]-[33]
10 PN876
11 PN585-587
12 Exhibit A, [69]
13 PN592-593
14 PN817-825
15 PN610
16 Exhibit 1, [31]
17 Exhibit 1, [32], [44]
18 PN480
19 Exhibit 1, [34];
20 Exhibit 6, [19]
21 Exhibit 1, [37]-[40]
22 Exhibit 5, [26]
23 Exhibit 5, [4]-[5]
24 PN471
25 Exhibit 5, [8]
26 Exhibit 1, [43]
27 Exhibit 1, [44]-[49], [51]
28 Exhibit 1, [52]
29 Exhibit 1, [50]-[51]
30 Exhibit 1, [54]
31 Exhibit A, [72]-[74]
32 Exhibit A, [84]
33 Exhibit A, [86]-[87]
34 PN851-856
35 PN630
36 PN930-933
37 PN954-957
38 PN966
39 PN968
40 PN979
41 PN949
42 PN952
43 Exhibit 2, [5]
44 Exhibit 6, [5]-[6]
45 Exhibit A, [44]
46 Exhibit A, [54]
47 Exhibit 6, [7]
48 Exhibit 2, [32]
49 Exhibit 2, [19]
50 PN285
51 PN328
52 PN286-288
53 Exhibit 6, [10]-[11]
54 Exhibit 2, [33]
55 Exhibit 2, [42]
56 Exhibit 2, [9]
57 Exhibit 2, [34]
58 Exhibit 2, [38]-[41]
59 Exhibit 6, [17]
60 Exhibit 2, [45]
61 Exhibit 2, [35]
62 PN763
63 Exhibit A, [49]; PN755-757
64 Exhibit A, [57]
65 Exhibit A, [50]-[51]
66 PN564
67 Exhibit A, [59]
68 Exhibit A, [55]
69 PN567
70 PN571
71 PN792-799
72 Exhibit A, [61]-[64]
73 PN816
74 Exhibit 3, [49]; [66]-[68]
75 Exhibit 3, [71]
76 Exhibit 7, [16]
77 Exhibit 3, [53]
78 Exhibit 3, [61]
79 PN390
80 PN397
81 Exhibit 7, [69]
82 Exhibit 7, [7]; PN413
83 Exhibit 7, [19]
84 Exhibit 3, [70]
85 Exhibit 7, [5]
86 PN559
87 Exhibit A, [92]-[97]
88 PN561
89 Exhibit A, [98], [108]
90 PN831
91 Exhibit A, [[104]-[105]
92 Exhibit A, [105]
93 Exhibit A, [107]
94 PN838
95 Exhibit A, [113]
96 Exhibit A, [112]
97 PN682. See also PN702-704
98 PN878-882
99 PN585-587
100 Exhibit 7, paragraphs 48ff
101 PN602
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