Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements

The Police Federation of Australia (Victoria Police Branch)
v
Chief Commissioner of Police T/A Victoria Police
(C2022/2593)

Section 739 Fair Work Act 2009 - dispute in relation to request for flexible work arrangements – whether reasonable business grounds for refusal – reasonable business grounds existed.

[1] The Police Federation of Australia (Victoria Police Branch) (TPAV) has raised a dispute under the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (Agreement). The dispute concerns a request for a flexible working arrangement on behalf of a member of the TPAV, First Constable S. Azmi (FC Azmi), which was refused by the Respondent (Victoria Police). Following the dispute procedures under the Agreement, an application was made under s.739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with the dispute. There is no disagreement that the relevant steps under the dispute clause in the Agreement were satisfied and that the Commission has jurisdiction to deal with the dispute.

[2] Following an unsuccessful conciliation, the Commission was asked to arbitrate the matter. The question for arbitration, as agreed by the parties, was:

“Did Victoria Police have reasonable business grounds to refuse First Constable Shafiqur Azmi’s request for a Flexible Working Arrangement (FWA) submitted on 5 October 2021?”

[3] Clause 14 of the Agreement is as follows:

“14. Right to Request Flexible Working Arrangements

14.1 All positions in Victoria Police may be worked flexibly.

14.2 An employee who:

(a) is the parent of, or has responsibility for, the care of a child who is of school age or under; or

(b) is a carer within the meaning of the Carer Recognition Act 2010; or

(c) has a disability; or

(d) is 55 years of age or older; or

(e) is personally experiencing family or domestic violence; or

(f) is providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family or domestic violence;

may request a change in working arrangements (including a change to work location) relating to those circumstances.

14.3 To avoid doubt, and without limiting sub-clause 14.2, an employee who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part-time to assist the employee to care for the child.

14.4 The employee is not entitled to make such a request, unless the employee has completed at least 12 months of continuous service with the employer, immediately before making the request.

14.5 Such a request must be made by the employee in writing and must set out the details of the change sought and the reasons for the change.

14.6 The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

14.7 Before responding to a request, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

(a) the needs of the employee arising from the circumstances;

(b) the consequences for the employee if changes in working arrangements are not made;

(c) any alternative flexibility arrangements that may meet the circumstances of the employee that require flexibility; and

(d) any reasonable grounds for refusing the request.

14.8 If the employer and the employee reached an agreement under sub-clause 14.7 on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

14.9 The employer may refuse a request only on reasonable business grounds.

14.10 Without limiting what are reasonable business grounds for the purposes of sub-clause 14.9, reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;

(c) 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;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

14.11 If the operational requirements or the employee’s circumstances change, the flexible working arrangements may be reviewed.”

[4] As the parties noted, cl.14 of the Agreement substantively reflects s.65 of the Act, although there are some differences. For example, s.65 of the Act does not contain an express obligation to discuss the request and to genuinely try to reach agreement – as is contained in cl.14.7 of the Agreement – although it might be presumed in the ordinary course that there would be some discussion to that effect. 1 Another difference, albeit slight, concerns the eligibility requirement to make a request. Section 65(1) of the Act provides as follows:

“(1) If:

(a) any of the circumstances referred to in subsection (1A) apply to an employee; and

(b) the employee would like to change his or her working arrangements because of those circumstances;

then the employee may request the employer for a change in working arrangements relating to those circumstances.” (my emphasis)

[5] The circumstances in s.65(1A) of the Act are materially identical to those listed in cl.14.2(a) – (f) of the Agreement. However, as noted from cl.14.2 of the Agreement, it is sufficient that an employee covered by the Agreement “may request a change in working arrangements (including a change to work location) relating to those circumstances.” This appears more beneficial than the rights under the Act, although I doubt the difference would usually be material, which also requires a request to be “because of” the “circumstances” listed.

[6] Under both cl.14.2 of the Agreement and s.65(1) of the Act, an employee who otherwise satisfies the criteria described may then make a request for a change in working arrangements “relating to” those circumstances.

The request

[7] FC Azmi is an officer of the rank First Constable within the Transit Safety Division (Transit) of Victoria Police. FC Azmi has been employed by Victoria Police since 10 August 2015.

[8] Shortly before April 2021, FC Azmi worked at Melbourne East station, as a Protective Services Officer (PSO). Whilst there, he was on a flexible work roster, based on 4 x 10 hours per week.

[9] In April 2021, FC Azmi transferred to the Transit division, where he was based in Frankston.

[10] On 12 April 2021, FC Azmi submitted an application for a flexible working arrangement, which request was subsequently rejected.

[11] On 5 October 2021, FC Azmi submitted a further request for a flexible working arrangement. It is this request that is the subject matter of the dispute raised before the Commission.

[12] The details of the request stated (the Request):

“My current arrangement be changed from 8 hours per day, 40 hours per week to 10 hours per day, 40 hours per week. I would like to request Monday, Tuesday & Sunday permanent days off.”

[13] Initial discussions ensued, including discussions about other options that Victoria Police considered might be suitable. Suffice to say, there was no agreement.

[14] On 18 October 2021, FC Azmi was informed, by email, that the Request had been refused. Some further discussions took place with TPAV. In January 2022, TPAV requested a formal response to the Request.

[15] On 3 February 2022, Victoria Police provided a letter of response setting out its refusal to the Request (the Refusal Letter).

[16] Briefly stated, the reasons for the request related to caring responsibilities concerning FC Azmi’s wife and primary school-aged children. It is unnecessary to state that detail further as it was not in dispute, and I am satisfied, that FC Azmi met the requirements of cl.14.1 and either or both of cll.14.2(a) & (b) of the Agreement.

[17] Accordingly, FC Azmi was entitled to “request a change in working arrangements (including a change to work location) relating to those circumstances”. It was also not in dispute, and I am satisfied, that the particular request for a change in working arrangement “related to” the circumstances of FC Azmi.

[18] Reflecting the question for arbitration, the sole point of contention between the parties was whether Victoria Police had “reasonable business grounds” to refuse the Request.

[19] The parties agree that the Refusal Letter, and the circumstances existing at the date of that letter, are the applicable matters for consideration.

Background and findings

The Transit Safety Division

[20] Transit is one of a number of divisions within Victoria Police. Transit itself is made up of five Local Area Commands or “LACs”, which cover different geographic regions. One of those regions is the “Southern Metropolitan Region”, which was synonymously (and more generally) referred to as “South LAC” or “Transit South”.

[21] Transit South itself is divided into four service areas, being “South” 1 to 4. South 1 is based at both Oakleigh and Malvern. South 2 is based at both Moorabbin and Bayside police stations. South 3 is based at Dandenong and Pakenham. South 4 is based at Frankston and Mordialloc. Occasionally a reference was made in the evidence to Transit South Frankston, although I understood that was a shorthand reference to describing South 4. To be clear on terminology, where I refer in my reasons to “Transit South”, I am referring to the whole Southern Metropolitan Region comprised of South 1, South 2, South 3 and South 4.

Protective Service Officers

[22] The role of the Transit division is primarily to support Protective Service Officers. PSOs patrol the public transport network.

[23] The powers and role of a PSO are more confined than that of a traditional sworn officer. For example, PSOs can arrest and detain offenders, but do not have authority to process offenders once they have been arrested. PSOs are also rostered to remain at train stations and can not leave their designated station.

[24] There are approximately 64 train stations across all of Transit South. Each of those stations is required to have a PSO presence.

[25] PSOs are predominantly rostered to work from 4:00pm to 2:00am every night, which allows a PSO presence from 6:00pm until the last train. On Friday and Saturday nights, trains operate continuously. Within Transit South, there are twenty “night network” stations that require 40 PSOs from 11:00pm until 7:00am the following morning on those nights. At times, particularly at stations where there might be higher offending (e.g. Frankston or Dandenong), PSOs might be rostered on day shifts.

[26] PSOs do not work day shifts in Transit South.

[27] PSOs are assigned duty on a “two up” model, which means there are a minimum of two PSOs at each location, to ensure the safety of the PSOs. Some locations have four PSOs assigned to them.

Transit – Officer support for PSOs

[28] Members of Transit described as “Other Rank” or “OR” support PSOs at tram, train and major bus stations, as well as conducting targeted operations. ORs are sworn officers below the rank of Sergeant, and include Constables, First Constables or “FCs”, and Senior Constables. FC Azmi is such an officer.

[29] ORs support PSOs in a number of ways. Broadly, the work of a Transit OR in supporting the PSOs includes:

•  Patrolling train stations on foot alongside PSOs.

•  Collecting and processing alleged offenders who have been detained by PSOs. Transit ORs are required to process and transport offenders who have been arrested by PSOs.

•  Tasking at transport hubs and places of mass gatherings, which might have a combination of buses and trams.

•  Conducting “reassurance patrols” to shopping centres aligned to the public transport network (and the evidence indicated there were ongoing public order challenges on the bus network in particular at the time).

•  Travelling on trains to provide a visible police presence.

•  Responding to fatalities, as well as criminal incidents on the transport network such as public order issues and graffiti.

[30] The function of ‘tasking’ refers to a focus on recent crime trends or problematic geographic areas. For example while on shift, ORs may be tasked with paying particular attention to bike thefts in a specific area. Transit also runs operations that run for a finite period, depending on the operation’s focus and staffing resources. An example given in evidence was an operation that took place involving weapons searches across multiple train stations.

Transit South resources

[31] Across Transit South, there are 32 “OR” positions, 36 Sergeant positions (whose role also includes oversight over PSOs), six Senior Sergeant positions and one Inspector.

[32] The Senior Sergeants are responsible for the day to day operations of Transit officers. The Senior Sergeants are assigned to particular area, i.e. South 1 to 4. Due to the greater work required, there are two Senior Sergeants in South 3 (Dandenong) and South 4 (Frankston), with one each for South 1 and South 2.

[33] Transit ORs in Transit South are based out of the Dandenong and Frankston stations.

[34] The parties differed as to what part of the business was relevant for assessing the “reasonable business grounds”. The Applicant’s position was that South 4 was the relevant business unit. Victoria Police contended that the broader Transit South division was appropriate.

[35] I consider that the broader Transit South division was more appropriate. I do so because, at an overall resourcing level, it appears that Transit South is led by a single Superintendent (who, in the case of Transit South, also leads East LAC and Central CBD and Emergency Management). There is also a single Inspector for the whole of Transit South. Superintendent Humberstone’s oral evidence included him describing how he advocates for additional resources on a regular basis, but, like every other Superintendent, they all compete for the same resource. Importantly, resources are allocated to Transit South, and not to the individual workplace level sitting within Transit South.

[36] The evidence of Acting Senior Sergeant Billing also provided credible, contemporaneous examples of close interaction (and sharing of resources) between South 3 (Dandenong) and South 4 (Frankston). His evidence, which I accept, gave examples of a divisional van being staffed by one officer from Dandenong and another from Frankston.

Transit South rostering

[37] Rostering for officers in Transit South is based on 8 hours shifts. Officers are required to work an average 5 x 8hr roster. Rosters in South 4 are prepared by rostering sergeants and are then signed off by a relevant Senior Sergeant within South 4.

[38] Transit officers are required to work day shifts, afternoon shifts and night shifts. As noted above, a core function of the Transit division is to support PSOs. Because PSOs are predominantly rostered in the evening, the majority of Transit OR shifts occur in the evening.

[39] Day shifts are scheduled to commence between 8.00am and 12.00pm (and will usually be later in that span if an officer was scheduled on an afternoon or night shift the previous day). The work of day shifts encompasses shifts to cover off on ‘tasking’ requirements, mandatory training, and other duties that are not directly connected with the PSO deployment.

[40] Afternoon shifts are 8 hour shifts commencing at 6.00pm. For the South 4 unit, they are run every night of the week and reflect the coverage of evening public transport services with PSOs.

[41] Night shifts are 8 hour shifts commencing at 10:00pm. They are only run on Friday and Saturday nights during the ‘night network’, which is when there are 24 hour services for public transport.

[42] When deployed, ORs work in pairs on a ‘two up’ basis for safety reasons similar to PSOs. That is, for afternoon and night shifts where ORs are deployed to perform their core function of supporting PSOs, ORs will be deployed on a two up basis for those shifts. If Transit is unable to roster a partner to an OR for a given deployment shift, the OR will be required to remain at a station performing administration or paperwork duties.

Van shifts

[43] There was some dispute between the parties as to the requirements for Transit South and, more particularly, South 4 to conduct what are known as ‘van shifts’. The nomenclature was a little confusing.

[44] The significance of this dispute arose from the explanation given in the Refusal Letter that Transit South was not meeting its “Minimum Operating Model” requirements for “van shifts”. TPAV’s contention was that there was only one van located at Frankston police station where FC Azmi was based and, further, that South 4 was adequately resourced to perform sufficient ‘van shifts’ (based on that one van). While I will return to the implications of this further below, I will briefly set out my findings in relation to ‘vans’ and ‘van shifts’.

[45] In this context, a ‘van’ is preferably a standard Victoria Police divisional van, although it might also be a ‘brawler’ van (which is a slightly larger vehicle based on a typical road van). The operational attractiveness of divisional vans and brawler vans is that there is a physical separation between the driver and front seat passengers (i.e. the officers) and people being transported in the back (e.g. an offender).

[46] Other operational vehicles were available at police stations, which included SUVs and sedans. There was a dispute as to whether these vehicles were available, or used, for the duties of Transit ORs when performing ‘van shifts’. It should be recalled that PSOs could arrest and detain on-site alleged offenders. ORs would collect alleged offenders and transport them to a police station for processing. There was a dispute as to the extent that ORs might transport offenders in vehicles that were not divisional vans or brawler vans, which in turn was related to a contention as to what could constitute a ‘van shift’ or not.

[47] Despite the nomenclature, a van shift did not necessarily require an actual van, although it ideally would do so. As became clear to me, a ‘van shift’ is essentially a synonym or short-hand for the deployment of ORs on a ‘two up’ shift in support of the PSOs. That is, it is a shift where they are typically performing a core function of Transit by the provision of officer support to PSOs on the public transport network. The business need for these shifts is daily (beginning in the afternoon), and with additional afternoon shift coverage on weekends, and further additional night coverage on weekends. In this respect, Acting Senior Sergeant Billing gave the following evidence, which I accept:

“In terms of the rostering perspective, we put the four members on the pm shift to cover what we call the two divisional vans, but it doesn’t mean they have to be in a divisional van, they can utilise a sedan, they could be on foot patrol”.

[48] While Acting Senior Sergeant Billing was located at Dandenong at the time FC Azmi’s FWA request was being considered, I am satisfied that Acting Senior Sergeant Billing has real and direct knowledge of practices in Transit South and South 4 in particular, through his responsibilities.

[49] I accept that, at Frankston, there was only one available divisional or brawler van at relevant times. However, there were also other police vehicles available. Sedans or SUVs could be used to transport offenders.

[50] FC Azmi’s oral evidence was that sedans or SUVs were not to be used for transporting offenders, and the brawler van was used “99 per cent of the time”. If that evidence was intended to be reflective of operations more widely, I consider it an exaggeration. I would also note that FC Azmi had only been in the role at Frankston since April 2021 and the months that followed were significantly affected by COVID ‘lockdowns’ in Victoria.

[51] The evidence of Acting Senior Sergeant Billing was that he himself – as a Sergeant or Senior Sergeant - transported offenders in the back of a sedan. He says for non-violent offenders, the wider practice is very common.

The Refusal Letter

[52] The Refusal Letter stated in general terms that the Request was denied “due to the required balance of your employee needs against the operational and business needs of the workforce.” In relation to the operational and business needs, the letter then set out further specifics of what those needs were said to “include but are not limited to”. They were:

“•  Following a 3-month review to establish whether your request for 10-hour shifts is able to be accommodated, it was found that [Transit Safety Division] TSD – South’s FTE is showing as a total of 34. However, due to operational and business restraints, frontline business as usual requirements averaged just under 14 FTE.

•  At any given time, 17% of our workforce are on various forms of recreation, maternity or WorkCover or long-term personal leave, and therefore another 21% of O.R’s within South LAC are upgraded or on assignment to backfill these vacancies. Due to chronic staff shortages this still does not cover the basic requirements.

•  During this 3-month review, TSD - South processed offenders for 325 offences, which highlights the requirement and need for further deployments of OR’s across the TSD network to support PSO Operations.

•  TSD – South’s Minimum Operating Model v the current status includes:

The above is a loss of 36 shifts. This does also not take into account any additional tasking, operations and additional deployments excluding COVID-19 responses. This is merely to support PSO Operations.

•  Consideration has also been given to the potential fatigue/health and safety risks that you may experience, by working a full 10-hour shift, then providing ongoing care for your wife, and additionally, supporting your children outside of these hours.

•  Additionally, as specified in your FWA application from 2021, you state that your wife is planning to go back to work starting as light duties this year. Once she starts going back to work, her normal working days are Monday, Tuesday & Saturday.”

The statistics – minimum requirements and delivered outcomes

[53] As is clear from the extract above, the Refusal Letter relied heavily on various figures regarding Transit South’s existing available resources. The figure of 34 FTE positions in Transit South was corrected by the evidence of Superintendent Humberstone to be 32 FTE.

[54] Superintendent Humberstone gave further evidence in support of other figures his letter described. He was also examined on a number of these matters. Taking those matters into account, I accept Superintendent Humberstone’s evidence that:

•  There are 32 funded FTE positions in Transit South.

•  Of the funded positions, there were possibly 1 or 2 vacancies at the time.

•  The figure of 32 factors in that, at any given time, there are around 17% of officers unavailable due to various forms of leave. By my reckoning, that accounts for around 5 – 6 officers out of that 32.

•  Due to those and other restraints, the actual FTE availability within Transit South at the time was only 14.

[55] While the explanation for the shortfall was not fully explained, I accept that the figure of 14 FTE for Transit South represents a significant shortfall of available officers, even factoring in ‘business as usual’ vacancies. For ORs in particular, there was also a knock on effect resulting from a need to upgrade a number of ORs to fill in for various sergeants being unavailable. The figure of 14 FTE was also not transitory, but at least represented the period from October 2021 through to the date of the Refusal Letter in February 2022. While there was some variance at the margins, it also appears those staffing shortfalls had been persisting since at least FC Azmi’s initial request in April 2021 and were substantively unchanged at the time of the hearing.

[56] Even if the analysis was conducted at the level of South 4 (which I do not accept is the relevant level for analysis), I find there is still an operating shortfall. Acting Senior Sergeant Billing’s evidence is that, for some time, South 4 only had 11 gazetted available officers out of a full-strength number of 16 and, when leave and other matters are accommodated, there were times when only 8 officers were available to be rostered. Senior Sergeant Campbell gave similar evidence. His evidence, which I accept, was that at a meeting with FC Azmi on 12 October 2021, only 6 of the 16 gazetted ORs for South 4 were available. Even factoring in business-as-usual contingencies, this is still a clear shortfall at the local level across a sustained period of time.

[57] Of greater contention were the statistics regarding Transit South’s “Minimum Operating Model”, as described in the Refusal Letter. This invoked some of the debate regarding “van shifts” above, although it was not so limited.

[58] The metrics for the Minimum Operating Model for van shifts set out in the Refusal Letter were supported by the evidence of Superintendent Humberstone. I accept his evidence that the minimum operating model for Transit South involved 156 van shifts per fortnight (being 56 day shifts, 84 afternoon shifts, and 16 night shifts). I also accept his evidence that Transit South has been operating at just under 124 van shifts per fortnight for the period from 24 October 2021 to 2 January 2022 and that the reason for that shortfall was due to staffing shortages.

[59] It is useful to set out the Applicant’s contentions, to explain how this debate evolved.

[60] As I understood the Applicant’s primary position, it was contended that there were already sufficient resources to deliver all necessary van shifts. The argument was based on arithmetic regarding South 4’s contribution to van shifts and some other assumptions. In short, the van shift assumptions were:

•  In South 4, as a factual matter, there was only one van available.

•  A van shift required two ORs (reflecting the two-up model).

•  The van was available for 14 days in a fortnight for day shifts (i.e. 7 days a week), therefore requiring 28 available day van OR shifts (i.e. per the two-up model).

•  The van was available for 14 afternoon shifts per fortnight, therefore requiring a further 28 available OR afternoon van shifts.

•  The van was available for 4 night shifts per fortnight (i.e. Friday and Saturday night, each week), therefore requiring a further 8 night van shifts.

•  In total across the fortnight, a total of 64 van shifts were available for delivery with that one van.

[61] The arithmetic for OR availability was based on the following assumptions:

•  Analysis of South 4 rosters (which FC Azmi put in evidence) showed there were between 11 and 14 ORs on the roster per fortnight.

•  Excluding ORs on parental leave or recreation leave, there was an average of around 10 ORs per fortnight during the relevant period.

•  As each OR would be available for 10 shifts each in a fortnight (i.e. 5 x 8hr shifts each per week), that represented 100 available shifts per fortnight. The actual available number was 98 (because one OR was already working a 4 x 10hr roster, hence would only account for 8 shifts in a fortnight, not 10).

[62] TPAV’s conclusions from the above propositions were said to be two-fold. First, the 98 OR shifts available for van shifts exceeded the 64 van shifts required. Second, any decision to assign ORs on different shifts (i.e. not a “van shift”) was an operational decision.

[63] A third proposition involved FC Azmi himself, which was that the loss of two shifts per fortnight caused by him moving from a 5 x 8hr weekly roster to a 4 x 10hr weekly roster would not make any significant difference to the above matters.

[64] While the above arithmetic was focused on resources from South 4, not Transit South as a whole, it was contended that it was clear that the contribution from South 4 to the whole of Transit South represented a significant enough contribution that it did not matter which level the analysis was performed at.

Other impacts of staffing shortfalls

[65] The Refusal Letter stated that the “Minimum Operating Model” shortfalls did not take into account “any additional tasking, operations and additional deployments excluding COVID-19 responses. This is merely to support PSO Operations.”

[66] Evidence given of those matters was more tangential, by which I mean that Victoria Police’s evidence referred to a range of policing matters aimed at demonstrating the overall environment in which Transit South was operating. For example, Superintendent Humberstone’s evidence included the following matters, which I accept:

•  Due to lack of Transit police staffing, PSOs had been required to release offenders, including those who were the subject of warrants for criminal offences. As PSOs cannot process offenders, the unavailability of a Transit OR to process the offender meant they had to be released from custody.

•  Due to lack of staffing, there were “closures” of train stations occurring in the sense that there were no PSOs available to staff them (the station is not closed to passengers and trains but a “closure” is an internal reference to describe when there was no PSO coverage). While “roving” ORs could provide some coverage for stations without PSOs, this “invariably” was not occurring due to OR police staffing shortfalls.

[67] Transit South has the highest levels of crime out of the five Local Area Commands that make up the Transit division. In South 3 (Dandenong) and South 4 (Frankston), four PSOs instead of the usual two are assigned to those stations at all times due to, among other matters, “high crime, public disorder, poor passenger behaviour and patronage rates associated with these response zones”.

[68] I accept that the consequences described by the Superintendent are real, and note that many of those issues are reported on monthly internally within Victoria Police (e.g., the closures, or incidents where Regional police are required to cover Transit staffing shortfalls).

[69] FC Azmi contended that he would be able to perform additional work for the two extra hours of a shift he would work on a 10 hour shift compared to his colleagues working only an 8 hour shift. As it was accepted by TPAV that there would necessarily be a loss of two operational (e.g. “van”) shifts because of the two-up model of rostering, it was contended that work such as “paperwork” or “correspondence” or taking statements from witnesses could be usefully performed. I do not accept that there would, overall, be sufficiently useful work available for the extra two hours on a 10 hour shift. I accept Superintendent Humberstone’s evidence and Acting Senior Sergeant Billing’s evidence that there was not a great operational need for that work. Acting Senior Sergeant Billing states it is difficult finding sufficient work for officers on “light duties” to keep them meaningfully occupied. Senior Sergeant Campbell’s evidence, which I also accept, was to similar effect. He concluded (as at October 2021) that it was unlikely there would be sufficient productive work for FC Azmi to complete for two hours of each 10-hour shift were he to work a 4 x 10hr roster.

Return to work

[70] A reason stated in the Refusal Letter was that FC Azmi’s wife might be returning to work. Whatever might have been the apprehension of Victoria Police regarding that matter, I am not satisfied on the evidence that, at 3 February 2022, that outcome was probable.

Applicable principles

[71] As is frequently the case, there was limited dispute between the parties as to the relevant principles but, rather, the dispute primarily concerned the application of the principles to the facts at hand.

[72] With some qualifications, the parties each submitted that the applicable principles were those stated by Wilson C in The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police 2 (Emery) at [45] (not disturbed on appeal)3, namely:

1. Consideration must be given to an assessment of whether the request was made is actually a request for a flexible working arrangement;
2. The employer is obliged to give a written response to the request, within 21 days of it being made;
3. The legislation requires that an employer may refuse a request only on reasonable business grounds. There needs to be an objective basis for those grounds.
4. The “refusal” of a request is when it is communicated to the applicant that the request is not agreed, and the reasonable business grounds upon which the refusal rests are those communicated at the time;
5. The intent of the legislation, as well as the intent of a flexible working arrangement clause, is to provide for flexible working arrangements.
6. There is a need for managers to weigh the personal circumstances relied upon by the employee against the extent of cost and impact on the business of allowing the request;
7. Since almost all requests will result in some cost from the proposed arrangement, it will generally be insufficient for an employer to simply point at cost as being a reason for refusal;
8. It follows from the foregoing that it will be necessary for the employer to point to some cost over and above what may be regarded as inevitable small adverse impacts.

[73] The qualifications, by Victoria Police, essentially concerned the extent that s.65 of the Act required the circumstances of the employee to be “balanced” against the reasonable business grounds advanced by the employer. In the present case, as I noted above, there was no dispute that FC Azmi’s circumstances qualified him to make a valid request under cl 14 of the Agreement.

[74] While it is unnecessary for me to decide in the matter before me, I consider that once he has met those qualifying circumstances, there is no requirement to balance those circumstances against the grounds advanced by the employer. Once qualified to make the request, the employer either has reasonable business grounds to refuse it or not. A balancing might involve an inquiry as to the strength or weakness of an employee’s request. I do not consider such an inquiry is necessary.

[75] An employee meeting the circumstances described in cl. 14.2 of the Agreement may make a request “relating to” those circumstances. It follows that an employee might have available a range of requests that could be made. In some cases, there may be a dispute as to whether a particular request “relates to” the circumstances of an individual. But once the matters in cl 14.2 are satisfied, it then falls to the employer’s refusal (if a refusal is made) to be made on reasonable business grounds.

[76] Clauses 14.9 and 14.10 of the Agreement respectively reflect the requirements of s.65(5) and s.65(5A) of the Act. Clause 14.10 of the Agreement is a non-exhaustive list of matters that would give rise to “reasonable business grounds”.

[77] Section 65(5) of the Act, on which cl 14.9 of the Agreement is clearly based, was introduced on establishment of the original Act. The Explanatory Memorandum to the Fair Work Bill 2008 relevantly stated:

“267. The Bill does not identify what may, or may not, comprise reasonable business grounds for the refusal of a request. Rather, the reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made. Reasonable business grounds may include, for example:

•  the effect on the workplace and the employer’s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;

•  the inability to organise work among existing staff; and

•  the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee’s request.”

[78] Section 65(5A) was introduced by the Fair Work Amendment Act 2013. The Explanatory Memorandum to the Fair Work Amendment Bill 2012 4 provided little guidance beyond the text of s.65(5A) itself. However, I consider it tolerably clear that the amendments in 2013 did not narrow the scope of s.65(5). Section 65(5A) itself provided guidance to what reasonable business grounds “include”.

[79] The objective standard for reasonableness remained unchanged, however, as did the requirement that the grounds referred to are “business” grounds. The assessment against “business grounds” directs attention to the possible effect on the business in question, as the Explanatory Memorandum to the original Act makes clear. Necessarily, that inquiry is somewhat forward-looking, as the grounds for refusal concern a hypothetical scenario where the request would have been granted. However, while the inquiry may have a forward-looking aspect, caution should be exercised when considering evidence of events following the refusal unless those events were capable of shedding probative light on the circumstances that existed at the time of the refusal; inadvertent hindsight illusion ought be avoided. 5

[80] TPAV made a number of objections to the relevance of evidence given of matters occurring after the Refusal Letter was delivered. They primarily relate to Acting Senior Sergeant Billing’s evidence. With some qualifications, I accept the force of those objections. However, as I have set out above, there were a number of matters of evidence that Acting Senior Sergeant Billing gave that I consider were probative of the relevant time period and that he was capable of giving evidence of them.

[81] Section 65 of the Act “should not be construed with an eye attuned to technicality.” 6 The time for consideration of a request is relatively short. The statutory scheme contemplates a degree of informality in the promotion of timeliness. The statutory scheme also contemplates (and the Agreement before me requires) the parties to engage with each other during the process to determine if other options might be available, should it be clear that the initiating request might be considered onerous or if more suitable arrangements could be arrived at. But once a refusal to a request is given, it is trite to say that history cannot be rewritten. If a ground was not relied upon at the time of a refusal, it would not be open to later rely upon it.

[82] While it is the case that a refusal must be accompanied by “the” reasons for the refusal, the letter of refusal is not a pleading. However, a letter bereft of reasons might be an indication that reasonable business grounds did not exist. If a matter was important enough for an employer to have turned its mind to at the time in relation to a refusal, it would be prudent to include that detail in the written response.

Consideration

[83] The request of FC Azmi was to change his 5 x 8hr (average) shift pattern to a 4 x 10hr (average) shift pattern, and with Monday, Tuesday and Sunday being permanent days off. That request was refused.

[84] The Refusal Letter set out a number of reasons for that refusal. There was some considerable debate about those matters, particularly in relation to “van shifts” and work practices and resources available for those shifts.

[85] However, I consider the crux of the matter revolves around Victoria Police’s contention, which was stated in its letter, that Transit South was experiencing “chronic staff shortages”. I accept that contention.

[86] TPAV’s contentions were essentially twofold. First, TPAV contended that there were sufficient resources to perform any needed van shifts and that the loss of two shifts caused by a roster change to FC Azmi’s work pattern would make no difference to that outcome. Second, TPAV contends that the loss of two shifts that would be caused by the changed roster pattern would not have any meaning impact beyond a “small adverse impact” on any relevant matter and in those circumstances, there were no reasonable business grounds for the refusal.

[87] I do not accept TPAV’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. For avoidance of doubt, I have not had regard to the impact of Victoria Police’s COVID-19 operations and the effect they had on Transit South. While those operations were relevant at the time of the Request, they had substantively concluded by 3 February 2022. I also do not accept TPAV’s premise that van shifts out of Frankston ought to be calculated on the basis of one van.

[88] TPAV’s contention that sufficient van shifts could be performed also seeks to isolate van shifts as the critical or dominant reason contained in the Refusal Letter. It was put that the decision to not undertake the minimum van shifts was an “operational” decision.

[89] While I accept that Victoria Police necessarily makes operational decisions as to how its resources are applied, there is an implicit assumption that so long as it can task sufficient van shifts, then the grounds in the Refusal Letter are not made out. I consider this is an unrealistic and overly technical reading of the Refusal Letter. The Refusal Letter was not limited to van shifts and expressly referred to “business as usual requirements”, Transit South’s “basic requirements” and that the problems regarding van shifts did “not take into account any additional tasking, operations and additional deployments”.

[90] The second contention of TPAV is on stronger ground and the question of the impact on Victoria Police regarding the Request, if granted, is more finely balanced. The parties set out detailed written submissions. I will not attempt to summarise them here or otherwise set them out but I have had regard to them.

[91] The onus for establishing reasonable business grounds lies with Victoria Police. Victoria Police primarily relies on its factual contention that the Transit South operations are currently experiencing a significant staffing shortfall. I accept that factual contention.

[92] Indeed, the picture presented of Victoria Police operations regarding public safety on key sections of the transport network with high crime rates is bleak, both for PSOs and the officers tasked to support them. Night shifts on the key public transport days of Friday and Saturday nights were operating at fifty percent of the minimum operating model. Afternoon shifts fared only slightly better. Offenders arrested on the network by PSOs were being released, simply because no officers were available to process them. It was likely this included offenders with existing arrest warrants.

[93] I accept that this context is a relevant matter to assess a flexible work request that would result in the loss of further shifts, even if that loss is just two shifts in a much larger number. The context here is that Victoria Police organises its existing Transit South officers on a rotating 5 x 8hr roster pattern, in which frontline work is performed on a two-up basis. I accept that a change to a 4 x 10hr shift would result in a loss of up to two shifts per fortnight in which productive work could be performed. 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. I am satisfied that these circumstances themselves are sufficient as a reasonable business ground for refusing the request, having regard to the matters above.

[94] If a flexible work arrangement would result in an employee being unable to perform useful or productive work for a meaningful portion of their proposed work pattern, I consider this would prima facie be a reasonable business ground to refuse a flexible work arrangement request. It was clear to me that the proposed roster pattern would result in FC Azmi being unavailable to perform sufficiently productive work for up to 2 hours per shift. Although I expect the average amount of productive work lost would be at the lower end of that 2 hour period, I am satisfied he would be routinely unable to perform sufficiently productive work two cover the extra two hours he would be working on a 10 hour day. I am also satisfied this matter establishes reasonable business grounds to refuse the Request is the case of FC Azmi.

[95] Coupled to the request to change roster pattern is that the Request would, if acceded to, involve fixed permanent days off, including on Sundays.

[96] Contrary to TPAV’s earlier submissions, the question is more complicated than simply assigning officers to “van shifts” or making operational decisions. The task of rostering is complicated. The Agreement prescribes a range of matters than need to be accommodated when rostering. Among other matters, they include “rest days” that, in effect, require giving a full weekend off every five weeks: Agreement, cl 37. Rosters are required to be published 21 days in advance of a roster period: Agreement, cl 35. As a matter of practice to reduce member fatigue, the rostering practices aim to give members a day or afternoon shift (not a night shift) before a rest day. With some justification, Acting Senior Sergeant Billing stated it takes a “creative approach and constant juggling of staff leave” to ensure the units have operational cover while complying with the enterprise agreement requirements and rostering practices.

[97] While I acknowledge that there is an existing officer in Transit South who has been granted a flexible work arrangement on a 4 x 10hr pattern, I do not consider that takes the matter further of itself. It was not clear to me what (if any) other restrictions existed, when it started, its proposed duration, or if that officer was otherwise fit for frontline duties. I also note that the arrangement was currently under review.

Conclusion

[98] In all the circumstances, I am satisfied that Victoria Police had reasonable business grounds to refuse the request for the flexible work arrangement made by FC Azmi on 5 October 2021. My answer to the question posed by the parties to be answered is “yes”. The dispute is therefore determined accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR745019>

Appearances:

G Stephens from the Applicant.

A Pollock of Counsel, instructed by Corrs Chambers Westgarth, for the Respondent.

Hearing details:

2022.

Melbourne:

August 23.

 1   Cf paragraph [269] of the Explanatory Memorandum to the Fair Work Bill 2008.

 2   [2018] FWC 5695.

 3   [2019] FWCFB 305.

 4   Paragraphs [37] – [39].

 5   City of Botany Bay Council v Jazabas Pty Limited (ACN 060 105 053) [2001] NSWCA 94, [83].

 6   Poppy v Service to Youth Council Incorporated [2014] FCA 656, [148].