Fair Work Act 2009
s.739 - Application to deal with a dispute in relation to flexible working arrangements

Natasha Fyfe
v
Ambulance Victoria
(C2022/3750)

Alleged dispute about any matters arising under the enterprise agreement

Introduction

[1] Natasha Fyfe (Applicant) is a young mum with three kids 1. Ms Fyfe is also an experienced and dedicated Advance Life Support Ambulance Paramedic having been employed by Ambulance Victoria (AV/Respondent) since 2015.

[2] Like many working carers/parents (disproportionately mothers) Ms Fyfe is trying to balance her work and family life. To do that, on 21 February 2022, Ms Fyfe made an application to AV for flexibility in her shift arrangements (First FWA Request) pursuant to clause 23 of the Ambulance Victoria Enterprise Agreement 2020 (Agreement). AV rejected her application.

[3] This decision is about whether AV had reasonable business grounds to do so.

[4] After going through an internal disputes process with AV, on 29 June 2022, Ms Fyfe applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act).

[5] By the time of the hearing the dispute related solely to Ms Fyfe’s request to change her night shift arrangements. 2 The normal night shift commences at 6:00 pm and concludes at 8:00 am.

[6] Ms Fyfe cannot work the normal night shift because she needs to be home until at least 6:30pm in the evening and return by 8:00am in the morning so that she can care for her children while her partner is at work.

[7] Ms Fyfe proposed that she commence night shift at 9.00 pm (rather than 6.00 pm) and finish night shift at 6.00 am (rather than 8.00 am). The change in start and finish time would allow Ms Fyfe enough time to travel to her branch in the evening, and to travel home in the morning. The amended hours would also allow for incidental overtime at the end of her shift.

[8] If agreed to, Ms Fyfe would still be able to undertake 64% of the night shift.

[9] It is this proposed change in night shift arrangements that AV rejected.

[10] The parties agreed that I should answer the following question:

“Does the Respondent have reasonable business grounds for refusing the First FWA Request pursuant to clause 23.4 of the Agreement?” (Agreed Question)

[11] For the reasons set out below I have determined the dispute by deciding the Agreed Question in the negative.

Jurisdiction

[12] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[13] While it is the case that s.739(2) of the FW Act prevents the Commission from dealing with a dispute “to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5)” the Commission is not prevented:

“from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5))”. 3

[14] In the present matter the clause in the Agreement dealing with dispute settling procedures is clause 11. It is not necessary to set the clause. It is common ground between the parties that the Commission has jurisdiction to arbitrate the dispute relating to the First FWA Request by answering the Agreed Question. In doing so the Commission is exercising the jurisdiction of a private arbitrator.

The Agreement

[15] The Agreement was approved by the Commission on 27 October 2022 4. It commenced operation on 3 November 2020 and has a nominal expiry date of 31 January 2024.5

[16] The Agreement covers AV and its employees who are who are employed in the classifications contained within the Agreement. 6 The Agreement also covers the Victorian Ambulance Union Incorporated (VAU) and the Australian Paramedics Association (VIC) Inc.7

[17] It is common ground that the parties to the dispute are covered by the Agreement.

[18] The relevant clause is clause 23 (set out below).

Substantive hearing

[19] At the substantive hearing on 24 and 25 October 2022,

a) the Applicant was represented by Mr Joshua Gardner, Lawyer and Industrial Officer of the VAU, and

b) the Respondent was represented by Mr Nick Harrington of Counsel, instructed by Ms Alice Alexander, Senior Associate at Lander & Rogers.

[20] In advance of the substantive hearing the parties filed material. For completeness I set

out below the documents relied upon by the parties. I have had regard to all this material in coming to this decision.

Uncontested facts

[21] The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact based on the evidence:

a) AV is a large state funded organisation in the business of the provision of critical health services to the community. Specifically, it provides state-wide emergency and non- emergency paramedical services to any and all members of the public. 8

b) That service provision is organised and then rolled out on a geographical or zoned basis so that there is state-wide availability. 9

c) AV's operational requirements are entirely dedicated to delivering these services, and a critical part of this is rostering. 10 AV's operating model and funding is endorsed by the Department of Human Services (DHS) and AV executive. It is the role of the centralised Rostering department to build and manage the rosters based on this model.11

d) At a branch level, each branch is funded to deliver a specified number of operational response hours per day based on the communities' needs. 12 There is then a specific number of time equivalent employees to fill its roster and set crew configurations.13

e) AV's funding can only be used to pay for paramedic wages and resources for shifts that align with the operational response hours and staffing configurations as prescribed by AV's resource model. These are 'funded shifts'. 14

f) Unfunded shifts must otherwise be justified by reference to community need and funding must be found - there is no excess of funds and AV exceeds its funding on operational matters most years. 15

g) AV rostering is complex.

h) The Applicant has been employed by the Respondent since February 2015. She is currently employed as an Advance Life Support (ALS) Ambulance Paramedic. 16

i) The Applicant has three children; aged 5 years, 2 years and 18 months. 17

j) The Applicant’s partner works as a panel shop manager. He works full-time from 9.00 am to 5.30 pm, Monday to Friday. 18 He usually arrives home between 6.15 pm and 6.30 pm.19 The Applicant’s partner leaves for work at 8.00 am so that he can take the eldest child to school on his way to work.20

k) This means that the other two younger children are left with the Applicant. On Tuesday, Wednesday and Thursday the Applicant takes the two younger children to childcare. 21

l) Since the birth of her third child the Applicant has limited other family support to assist with the care of her 3 children. 22

m) In or around January 2018 the Applicant transferred to the Kilmore branch and has remained allocated to the Kilmore branch since that time. 23

n) The Applicant and her family live approximately 15 kilometres east of Seymour, in Victoria. 24

o) The Kilmore branch is located approximately 55 kilometres from the Applicant’s home. It takes the Applicant approximately 45 minutes to travel to work. 25

p) The Kilmore branch is located within the “Hume 1” Ambulance Service Area (ASA) and within the Mitchell Local Government Area (LGA). 26

q) The Kilmore branch has a slightly different roster to other branches in the Mitchell LGA as the roster provides for a 38-hour working week, rather than a 40-hour week. 27

r) Consequently, the Kilmore branch provides for 38-hours of ‘funded’ shifts which are funded by the daily budget of the branch. 28 Recall to duty shifts and shifts worked on an overtime basis are funded from a separate pool of funding.29

s) Therefore, staff at the Kilmore branch do not work a traditional “10/14 roster” where staff work for two 10-hour day shifts, two 14-hour night shifts and then have four days off. Instead, the Kilmore branch roster is an eight-day roster cycle that includes a combination of periods of 3 days on, 5 days off and 4 days on, 4 days off with shifts times as follows:

a. Day: 0700 – 1900 (12 hours);

b. Afternoon: 1100 – 2300 (12 hours); and

c. Night: 1800 – 0800 (14 hours). 30

t) There are around 25 qualified paramedics employed at the Kilmore Branch. There are seven roster lines with two officers on each line. 31

u) The Applicant wants to continue to work full-time. Working a reduced number of hours would adversely affect the financial circumstances of the Applicant’s family. 32

v) The Applicant wants to continue to work night shift. She feels it would be unfair to her colleagues if she only worked day and afternoon shifts. 33

w) On 21 February 2022, the Applicant made her FWA Request to the Respondent to work the following roster pattern:

Week 1 - Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600 Sunday 0700-1700

Week 2 - Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600

Week 3 - Tuesday 0700-1700 Wednesday 1100-2300 Saturday 2100-0600

Week 4 – Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600

Week 5 – Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600

Week 6 – Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600

Week 7 – Tuesday 0700-1700 Wednesday 1100-2300 Saturday 2100-0600

Week 8 – Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600. 34

x) On or around 21 February 2022, Mr Tim Clancy, Senior Team Manager for the Mitchell LGA, had a discussion with Mr Edward Lieu, Acting Team Manager for the Kilmore Branch regarding the Applicant’s FWA Request. Mr Clancy said that he thought the request would not be approved as it did not match the roster pattern at hers or any other branch in the LGA/ASA. 35

y) On 28 February 2022, Mr Lieu emailed the Applicant explaining that the proposed shortened night shift hours would not be feasible as there were no resources (ambulances) in the region at those hours and that therefore her FWA Request was likely to be rejected. 36

z) On the same day, the Applicant replied to Mr Lieu stating that she understood that there were no resources in the region but that she still wished to have the FWA Request submitted. 37

aa) On 1 March 2022, Mr Lieu emailed the Rosters FWA team attaching a copy of a completed shift weighting calculator for the Applicant’s FWA Request for comment. 38

bb) On the same day, Mr Lucas Finlay, Resource Planning Officer, replied to Mr Lieu, confirming that:

a. Ms Fyfe's proposed FWA met the shift weighting target of 1.30;

b. the shift profile was suitable for the region; and

c. the Rosters department was happy to endorse Ms Fyfe's FWA application. 39

cc) On or around 9 March 2022, Mr Clancy called the Applicant to discuss the FWA Request. Mr Clancy said words to the effect of, “It can’t be done. We will need to find a car for her because the (night) shift doesn’t exist”. 40

dd) On 9 March 2022, Mr Clancy sent the Applicant an email advising that “As per our phone conversation, Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration.” Mr Clancy asked the Applicant to consider this with future applications. 41

ee) On 16 March 2022, the Applicant made a second request for an FWA which was for a roster that included weekday day and afternoon shifts, and Saturday night shifts, but no weekday night shifts. 42

ff) On 22 March 2022, Mr Lieu emailed the Applicant and stated that the second FWA request could not be progressed because it did not meet the shift weighting calculator. 43

gg) On the same day, the Applicant emailed Mr Lieu asking him to confirm that both of her FWA requests had been formally rejected by the Respondent. The Applicant stated that following advice from the union she would have no other option than to lodge a formal grievance. 44

hh) On 29 March 2022, Mr Lieu emailed the Applicant stating “Option 1 – we currently can’t provide shifts that do not align with your home branch or branches in the region. Option 2 – just clarifying that it’s 1 NS/weekend shift per 4 weeks? If so, unfortunately with the proposed shifts, it falls significantly under the weighting calculator. Unfortunately, both options don’t meet operational demand.” 45

ii) On 14 April 2022, the Applicant submitted a grievance in relation to the rejection of her FWA requests to the Respondent in accordance with Clause 11.3 of the Agreement. 46 The grievance specified that due to the rejection of the FWA requests, the Applicant was unable to fulfil her responsibilities to parent her children with her partner working full time, both of their parents working and living in a rural area and their available options for childcare being limited.47

jj) On 2 May 2022, the Applicant attended a meeting with her representative Ms Ogla Bartasek from the VAU, Mr Michael Atkinson, Area Manager for Hume 1 and Ms Enza Frankiewicz, Human Resources Advisor for the Respondent, to discuss the Applicant’s grievance. 48

kk) On the same day, Mr Atkinson sent the Applicant a letter summarising both the Respondent’s issue with the FWA requests and what was discussed at the grievance meeting. Mr Atkinson stated that “Following our meeting, I have considered your responses and explored options to resolve your grievance and can provide the following: I am not able to approve this request for a roster configuration that is not a current shift pattern aligned to the Kilmore branch roster.” 49

ll) On the same day, the Applicant replied to Mr Atkinson advising that she wanted to progress her grievance to Stage 2 of AV’s grievance procedure. 50

mm) On 9 May 2022, Mr Atkinson sent an email to the Applicant attaching an invitation to attend a stage 2 grievance meeting on 13 May 2022. 51

nn) On 13 May 2022, the Applicant attended the stage 2 grievance meeting with Ms Narelle Capp, Regional Director of the Hume Region, Ms Anna Devereaux, Senior People Partner and Ms Bartasek. At this meeting the Applicant reiterated that she had requested to work a shorter night shift from 9:00pm until 6:00am due to her carer’s responsibilities. At the meeting Ms Capp stated that:

a. AV could not accommodate the requested night shift as it was not part of a current shift configuration that was available at the Kilmore branch and that no one in the Hume 1 Region works shifts outside the scheduled, funded shift times;

b. AV's resource model determined that the appropriate crew configurations required at the Kilmore branch to meet patient needs (i.e. transporting patients to hospital), required dual officer crewing. Accordingly, if the Applicant’s night shift finished early, her crew partner would remain on shift as rostered but would be unable to transport patients to hospitals, which is the usual service delivery required in the Kilmore branch. This would result in a shortfall of operational response hours required of the Kilmore branch;

c. AV requests paramedics to work overtime or recall to shifts when required due to unforeseen circumstances such as a paramedic calling in sick. For the last two years this has occurred more frequently because of the impact of the COVID-19 pandemic, but this is a response to unforeseen circumstances;

d. part shifts are not funded as part of the AV business-as-usual resource model;

e. as a paramedic on spare but working outside the hours of a funded shift, another paramedic would be required to work an unfunded part shift to cover the hours that Ms Fyfe did not work; and

f. AV is flexible in accommodating shift requests provided they were part of a current shift configuration.

Ms Capp offered the Applicant the option of working any funded shifts within the Hume 1 Region. 52

oo) On 3 June 2022, Ms Capp sent the Applicant a letter dated 31 May 2022 detailing what was discussed at the stage 2 grievance meeting of 13 May 2022. In the letter Ms Capp proposed:

a. that the Applicant consider other roster options that are available to her in the Hume 1 Area, as AV were not able to offer her shifts that are not part of a current shift configuration i.e. 21:00 to 06:00,

b. that if she could select shifts that fit into an existing roster configuration available in the Hume 1 Area, they could be accommodated, and

c. that she resubmit her FWA request with a combination of existing roster options in the Hume 1 Area. 53

pp) On 10 June 2022, the Applicant sent an email to Ms Capp advising that she would confirm if she wished to escalate her grievance sometime in the following week. 54

qq) On 16 June 2022, Mr Gardner sent an email to Ms Capp advising her that the Applicant had referred her grievance for resolution in the Fair Work Commission. 55

rr) On 19 September 2022, the Applicant returned to work from parental leave and is currently upward relieving as a Team Manager, on a roster which is similar to that requested in the second FWA request, whilst the dispute is resolved. 56

Principles of interpretation

[22] The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel 57. In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).58

[23] I adopt the Berri principles. Consequently, in deciding the meaning of “reasonable business grounds” (clause 23.4), it is necessary to,

a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,

b) determine whether the Agreement has a plain meaning,

c) review the text of the Agreement as a whole,

d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,

e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,

f) not adopt an overly technical approach to the interpretation of the Agreement, and

g) not contradict the plain language of the Agreement.

[24] In coming to the conclusion I have come to, I should indicate that I do not consider there to be any ambiguity or uncertainty in the provisions of clause 23.4 of the Agreement. Each of the words in the phrase “reasonable business grounds” have ordinary meanings as defined in the Macquarie Dictionary: 59

a) “reasonable” means: “2. - agreeable to reason or sound judgement”;

b) “business” means: “5. - place of work”;

c) “grounds” means: “5. - the foundation or basis on which a theory or action rests”.

[25] In the present matter the parties each made submissions about the legal principles applicable to considering “reasonable business grounds”.

[26] In relation to the relevant principles of interpretation, the Applicant submitted that,

15. “There have been a limited number of cases that consider the relevant principles in determining a dispute about whether an employer has reasonable business grounds to refuse an application for an FWA.

16. In The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police [2018] FWC 5695 (Victoria Police No. 1), Commissioner Wilson provided the following summary of the relevant principles. These principles were undisturbed on appeal in Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria [2019] FWCFB 305; 283 IR 401 (Victoria Police No.1 Full Bench) and adopted by Commissioner Bisset in The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police/Chief Commissioner of Police [2021] FWC 5983 at 75 (Victoria Police No.2):

“[45] What may be drawn from this consideration both of the legislation, as well as the Commission’s earlier decision in Brimbank, are the following principles, pertinent to a decision to refuse or cutback the scope of a request that has been made:

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.”

17. The Applicant submits that the Commission ought to adopt these principles in the present dispute and apply them to Ms Fyfe’s FWA request.”

[27] In relation to the relevant principles of interpretation, the Respondent submitted that,

21. “The proper approach was elegantly summarised by Commissioner Wilson in Police Federation at first instance.

….

Organising principles

33. AV contends the following organising principles should inform the Commission’s adjudication of this dispute:

a. the word ‘reasonable’ in the expression ‘reasonable business grounds’ imports a standard of reasonableness such that the Commission must ascertain the objective basis for any such business grounds;

b. the following eight (8) ‘principles’ articulated by Commissioner Wilson in Police Federation 1st instance (not disturbed on appeal):

i. Consideration must be given to an assessment of whether the request as made is actually a request for a flexible working arrangement;

ii. The employer is obliged to give a written response to the request, within 21 days of it being made;

iii. 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;

iv. 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;

v. The intent of the legislation, as well as the intent of a flexible working arrangement clause, is to provide for flexible working arrangements.

vi. 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;

vii. 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;

viii. 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.”; and

c. the reasons proffered by an employer to an employee for rejecting a FWA request are to be evaluated fairly having regard to all of the circumstances, including the work that has to be performed by an employee. Such contextualisation provides a basis for review of the reasonableness of the business grounds given by an employer for denying the request at the time; and

d. the Commission’s role in determining a dispute such as this is to determine if the business grounds relied on by AV in refusing the FWA request is, in all of the circumstances, objectively reasonable (in addition to determining if the other requirements of the clause have been met). It is not the Commission’s role to determine whether the request should be granted.

34. It is also accepted that a ‘hypothetical’ adverse impact on a business might not constitute a reasonable business ground.

35. Finally, it is the role of the Commission to assess the FWA [in fact] sought by the employee in her formal request and the impact of that FWA on the business. The Commission is a private arbitrator answering a question/dispute agreed by the parties – and only that question.”

[28] I adopt the principles in The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police [2018] FWC 5695 (Emery).

Submissions

[29] In relation to the Agreed Question the Applicant submitted that,

“Was the refusal of Ms Fyfe’s FWA request on reasonable business grounds?

18. It is only the ground(s) which were nominated by AV at the time of refusal that are relevant to the Commission’s determination of this dispute.

19. Mr Clancy’s email of 9 March clearly states that the reason for the refusal of Ms Fyfe’s FWA application is “Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration”. Therefore, the Commission must determine whether this is a reasonable business ground.

20. AV’s refusal, and the reason given for the refusal, relates specifically to the 2100- 0600 night shift that Ms Fyfe requested to work as part of the FWA. The day and afternoon shifts worked on Tuesday and Wednesday align with the normal start and finish times for those shifts at the Kilmore branch.

21. The Applicant submits that the reason given by AV is not a reasonable business ground.

22. Section 65(5A) provides a non-exhaustive list of what may constitute reasonable business grounds:

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), 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.

23. There should be no doubt that a change in the hours of work is, generally, a type of flexibility that can be sought as part of an FWA. It is expressly referred to in the note to section 65(1): “Examples of changes in working arrangements include changes in hours of work…”

24. In assessing whether the reason given by AV is a reasonable business ground, including considering the factors set out in section 65(5A), it is necessary to consider how Ms Fyfe intended to work as part of her FWA.

25. As previously noted, the day and afternoon shifts align with the normal roster and would present no issues for AV.

26. In relation to the night shift, there are ongoing issues with resourcing night shift in the AV service generally, and in the Hume region. There are frequently shifts that are dropped because paramedics have called in sick and cannot be replaced. Alternatively, some shifts may be staffed but not with the capability of a dual ALS paramedic crew. They may be staffed by a single paramedic responder (who cannot transport patients) or by a dual Ambulance Community Officer crew (who cannot deliver the same level of medical care).

27. Indeed, it is Ms Fyfe’s evidence that there was a shift that was going unfilled or being filled by an officer working overtime on almost every night at one of the eleven branches that she was able to work at as part of her FWA.2

28. Ms Fyfe would not be rostered to work as part of a crew on the regular Kilmore roster. She would fill vacancies that are otherwise going unfilled or are currently filled by paramedics working overtime. In contrast, Ms Fyfe would be paid at normal time as these would be her ordinary hours of work.

29. Turning to the factors set out in section 65(5A):

a. The arrangement would not have a significant cost for AV. The wages paid to Ms Fyfe for performing this work would be offset by AV not paying overtime to another officer to fill these vacancies.

b. There would not be a need to change the working arrangements of other employees. Ms Fyfe would allow other employees to work as part of a two paramedic crew as intended.

c. There would not be a loss of efficiency or productivity, or a negative impact on customer service. On the contrary, having Ms Fyfe as a resource to fill these unplanned vacancies would ensure that fewer shifts were dropped altogether and there was greater ambulance coverage for the community on those nights.

30. The Applicant acknowledges that the list in section 65(5A) is not exhaustive and a reason for refusing a flexible work arrangement can be a reasonable business ground despite not being included in that section.

31. Nevertheless, the Applicant submits that the reason for the refusal of the FWA request is not reasonable.

Conclusion and relief

32. Therefore, the Applicant submits that the Commission should answer “No” to the question for determination.

33. In the absence of a reasonable business ground for refusing the FWA, the Applicant believes the Respondent ought to grant the request and implement the FWA.”

[30] In relation to the Agreed Question the Respondent submitted that,

18. “Putting to one side what constitutes a ‘reasonable business ground’, the inquiry before the Commission is an objective assessment of the evidence adduced by AV in support of its refusal on the “business grounds”. It is essentially a factual inquiry.

19. AV will contend, on the evidence it adduces to the Commission, that it did have the relevant reasonable business grounds upon which to refuse the FWA request having regard to:

a. the funded shift structure at the Kilmore branch level and the reality of an unfunded shift;

b. the bespoke or hybrid nature of the desired shift times and pattern; and

c. the confounding operational difficulties associated with the Bespoke Night Shift Times.

20. There is a strong and objective evidentiary basis for the Commission to find that the FWA Refusal was informed and/or animated by reasonable business grounds. That is because there is objective evidence of “some cost or 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.”

….

Construing the Agreement

….

29. Critically, the Agreement does not seek to define “reasonable business grounds” either in clause 23 or in the body of the ‘Agreement definition’. However, the makers of the Agreement chose a phrase with statutory industrial pedigree and history. In relation to that expression, some guidance may be obtained from s.65 of the Fair Work Act 2009 (Cth) (FW Act). It is strongly arguable the framers of the Agreement, as parties engaged in the realities of industrial relations, were alive to the regulation of a similar entitlement in the FW Act. In fact, s.65 is referred to in clause 23.6 of the Agreement. On that basis, the Commission, in construing the phrase in this Agreement, may have regard to the analogue definition in the FW Act: see s.65(5A) of the FW Act for a non-exclusive summary of relevant factors. Those relevant ‘statutory’ considerations are, but are not limited to:

a. too costly for the employer;

b. no capacity to change the working arrangements;

c. impractical to change the working arrangements;

d. significant loss in efficiency or productivity; and

e. likely to have a significant negative impact on customer service.

30. While informative, the Commission is not limited to (or confined by) the statutory considerations.

31. As varied as the reasons for a FWA request may be, so too are the reasonable business grounds for potentially rejecting it. AV submits the non-exhaustive nature of the concept is of deliberate legislative design, reflecting the diversity of business needs and operations; ultimately, what is needed is a qualitative assessment “of the reasonableness of the grounds…in the circumstances that apply when the request is made”.

32. The Agreement does not, in terms, contain a clause setting out a non-exhaustive, indicative list of the grounds on which a request may reasonably be refused.

….

The facts

36. It is important that the Commission determine, as a question of fact, the nature of the ‘business’ in which AV is engaged and the needs of the 'customers' it serves. That is germane to the question of any ‘grounds’ it may invoke to refuse the FWA. The Commission may take judicial notice of the role performed by AV in Victoria.

37. AV is a large state funded organisation in the business of the provision of critical health services to the community. Specifically, it provides state-wide emergency and non- emergency paramedical services to any and all members of the public.

38. That service provision is organised and then rolled out on a geographical or zoned basis so that there is state-wide availability.

39. AV's operational requirements are entirely dedicated to delivering these services, and a critical part of this is rostering. AV's operating model and funding is endorsed by the Department of Human Services (DHS) and AV executive. It is the role of the centralised Rostering department to build and manage the rosters based on this model.

40. At a branch level, each branch is funded to deliver a specified number of operational response hours per day based on the communities' needs. There is then a specific number of time equivalent employees to fill its roster and set crew configurations.

41. AV's funding can only be used to pay for paramedic wages and resources for shifts that align with the operational response hours and staffing configurations as prescribed by AV's resource model. These are 'funded shifts'.

42. Unfunded shifts must otherwise be justified by reference to community need and funding must be found - there is no excess of funds and AV exceeds is funding on operational matters most years.

43. AV is supportive of FWAs, including paramedics working part-time or particular shifts, so long as they are part of an existing shift configuration.

The reasons for the FWA Refusal

44. The contemporaneous reason(s) given by AV for the FWA Refusal are in evidence and comprise the following:

a. in an email from Edward Lieu, Acting Team Manager dated 28 February 2022: "the shortened night shift won't be feasible and the FWA will most likely be rejected as there's no resources at those hours in the region.";

b. in an email from Tim Clancy, Senior Team Manager dated 9 March 2022: "Hume 1 is currently not able to provide shift start/finish times outside the Employee's Team Roster configuration" and “we are currently not in a position to offer this level of roster variation”; and

c. in a further email response from Mr Lieu dated 29 March 2022:

i. “both options [the FWA and the Second FWA Request] don’t meet operational demand”; and

ii. “Option 1 [the FWA request]: we currently can’t provide shifts that do not align with your home branch or branches in the region.”

45. In summary, the reasons for the FWA Refusal were multiple and included consideration of:

a. roster variations which did not meet operational demand; and

b. the inability to provide shifts that did not align with AV's shift configuration — not only at Ms Fyfe's home branches, but any branches in the Hume 1 ASA or the entire Hume region.

46. Upon first notifying the FWA on 21 February 2022, and within 7 days on 28 February 2022, Ms Fyfe observed in an email to Mr Lieu: “I understand we don’t have the night shift resources in the region. I would still like this submitted….”.

47. Sensibly, Ms Fyfe was alive to the complexities and operational difficulties attaching to the FWA, namely that component requesting the Bespoke Night Shift Times.

The evidence upon which the Commission may rely to find there was reasonable business grounds for the FWA Refusal

48. There is a sound base to demonstrate that there were reasonable business grounds in support of the FWA Refusal. This resulted in AV's inability to implement the Bespoke Night Shift Times. The evidence demonstrates that AV was able to make adjustments to meet Ms Fyfe's other requirements, including the shortened Day shifts. These shifts did not align with the Kilmore day shift, but they aligned with the shift configuration at another branch in the Hume region. Ms Narelle Capp, Acting Regional Director of the Hume Region, will give evidence that Ms Fyfe was offered the option to work any funded shifts within the Hume Region.

49. AV's resource model determined that the appropriate crew configurations required at the Kilmore branch to meet patient needs (i.e. transporting patients to hospital), required dual officer crewing.

50. Ms Capp will give evidence that in seeking to establish an individual roster configuration, Ms Fyfe's FWA request would:

a. pose real difficulties to the established shift rostering system at AV;

b. create funding challenges (because the Bespoke Night Shift Times are an unfunded shift); and

c. would impact other paramedics in Ms Fyfe's team because:'

i. when Ms Fyfe finished the Night shift under the Bespoke Night Shift Times, her crew partner would remain on shift as rostered but would be unable to transport patients to hospitals, which is the usual service delivery required at the Kilmore branch; or

ii. their rosters would also need to be altered to align their start and finish times to the Bespoke Night Shift Times to ensure ongoing service delivery, and would also result in a shortfall of operational response hours required of the Kilmore branch.

51. Mr Ben Weinert, Manager in AV's Rosters department, will give evidence that the Bespoke Night Shift Times would have the effect of creating a vacancy of three (3) hours at the start of the Night shift and two (2) hours at the end of the Night shift. Patients could not be transported during these periods (as ambulances can only transport patients when the vehicle has two (2) paramedics onboard) unless another ambulance attends to assist.

52. Mr Weinert will give further evidence that the Bespoke Night Shit Times would cause inefficiencies and operational impacts. These novel shift times would create six (6) significant problems for AV, including:

a. first, it would be inefficient because it would impact AV's operational capacity as, if a patient required transport, two (2) ambulances would be attending the same job. This would arise where Ms Fyfe attended a call-out as a single paramedic and, unable to transport the patient, would be required to call another ambulance to attend the job and transport the patient (significant loss in efficiency or productivity);

b. secondly, it would require a more expensive doubling up of resources: two resources (ambulances) attending the same call out if the patient needed to be transported. As well as being operationally inefficient, this requires AV to devote two resources to the same job where it would otherwise be unnecessary for it to do so (too costly for the employer);

c. thirdly and critically, if the resource is short staffed or two resources were to be allocated, there is a more fundamental drain on the AV response times and resource management generally (significant loss in efficiency or productivity; likely to have a significant negative impact on customer service);

d. moreover, and fourthly, the meal breaks of the two paramedics on the resource would not align. This adds to the inefficiencies of operating that resource as it would be required to make additional stops to ensure individual employees take the required meal breaks (significant loss in efficiency or productivity);

e. fifthly, and more importantly, there could be no guarantee as to the location of the resource (ambulance) Ms Fyfe is rostered on to when she commences her night shift at a later time. Given that Kilmore is a rural AV location, the ambulance could be hours away from the Kilmore branch. Ms Fyfe would be unable to work on that resource until it returned to the branch to pick her up. The entire resource would effectively be brought down to Ms Fyfe's Bespoke Night Shift Times, instead of the standard shift lengths and times, and there would be difficulties allocating jobs (incidents) to Ms Fyfe's resource. AV would likely be unable to service the funded shift (significant loss in efficiency or productivity); and

f. if Ms Fyfe is required to drive from Kilmore branch to where the vehicle she is allocated is located and drive back again at the end of her shift in order to get home, this may occur during her shift time which would add to the service hours lost as a result of this arrangement (significant loss in efficiency or productivity; too costly for the employer).

53. Further, upon the Bespoke Night Shift Times request, Ms Fyfe would be unable to fulfil her role as a Clinical Instructor. She could not be rostered with a student paramedic for an entire shift given the oversight responsibility that involves. The student could not be allocated a partial shift because that shift is not funded. It would reduce the full-time hours the student is working because the student cannot work for a part of the shift without a Clinical Instructor.

54. In summary, AV will contend the following objectively established facts support the FWA Refusal on reasonable business grounds because there is clear evidence of some [significant] cost or impact over and above the inevitable small adverse impacts:

a. the Bespoke Night Shift Times created a one-person centric shift structure in a rural branch that is not otherwise funded within the organisation;

b. no AV branch in the Hume 1 ASA or indeed the entire Hume Region was working to the Bespoke Night Shift Times requested by Ms Fyfe;

c. no other AV operational staff member was working the Bespoke Night Shift Times such that Ms Fyfe could be paired on a resource (ambulance) with that person;

d. the ‘instances of difficulty’ imposed on AV by the Bespoke Night Shift Times on the AV operations are not ‘modest problems’; the impacts are not ‘minor’ – there are significant practical issues where Ms Fyfe starts the standard night shift late and ceases early and is rostered to work in a team of two, out on the road responding to emergencies;

e. expanding upon d) above, there are real financial and operational difficulties attending the rostering of such shifts on a recurring basis for one employee only; and

f. if operational capacity is reduced in this rural area, there is a prospect, which is not purely hypothetical in nature, that reduced service levels could result in the delayed provision of appropriate paramedical services and thus result in harm.

Disposition

55. The Commission should answer the question posed for adjudication in the affirmative. There were reasonable business grounds for the FWA Refusal.

56. The application should otherwise be dismissed.”

[31] In reply, the Applicant submitted that,

1. “The Respondent’s Outline of Submissions and witness statements appear to show that there is a significant discrepancy between what the Respondent understands about the Applicant’s roster proposal, and how the Applicant believes her proposed FWA would operate.

2. The Respondent has raised a number of concerns about impact on its operations if the Applicant was rostered to work from 21:00 to 06:00 and was rostered on to one of the funded lines at her branch (or another suitable branch).

3. The Applicant accepts that would be an inherent problem with this arrangement. There would be significant impacts on service delivery and on the Applicant’s partner if she were to commence work three hours after her partner and conclude work two hours earlier.

4. However, this is not and has never been how the Applicant has asked to be utilised. As outlined in her witness statement and the earlier Outline of Submissions, the Applicant has identified that there have been (and continue to be) significant difficulty in filling shifts in her area. This is demonstrated by the number of text messages she and other paramedics have received asking officers to fill shifts. As outlined in Mr Weinert’s statement, the Respondent only resorts to sending messages to all operational staff after it has utilised any spare officers in the vicinity and any officers who have volunteered to be on the overtime list.

5. The Applicant’s view has always been that, were she to work in accordance with the proposed FWA, she would be utilised to fill any unexpected vacancies in a similar manner to a “spare” officer, albeit one who is only available between 21:00 and 06:00.

6. However, there would be a difference which is of benefit to the Respondent. A spare officer commences work at their home branch and then travels to the branch where a vacancy exists and is entitled to return to their home branch by their rostered end time (although it is a frequent occurrence for all officers that they are engaged on a case and cannot finish their shift at the rostered end time).

7. In contrast, the Applicant has indicated that she would be happy to be rostered as “flexible”, meaning that she would commence and finish work at the location where the vacancy existed, and would travel to and from that branch in her own time. This is the same arrangement that is referred to as a “reserve spare” in Mr Weinert’s statement. This would go some way to mitigating the effect of the Applicant’s shorter shift.

8. The Respondent has raised particular concerns with the period between 18:00 and 21:00, and 06:00 and 08:00, that is the periods where the Applicant’s proposed shift does not overlap with the standard rostered Kilmore shift. The Applicant submits that the Respondent’s concerns would be mitigated by the following:

a. “Recall messages” are frequently sent after 18:00, and indeed as late as 22:00 or 23:00. By the time an officer has accepted this request and has travelled to branch, their actual start time would be similar to the Applicant’s proposed start time of 21:00, or even later.

b. As outlined above, the Applicant would commence and finish work at the branches where the vacancy exists, in contrast to a spare officer who would start at 18:00 and then travel to the required branch (and likewise travel home in order to finish at 08:00). This travel time may be up to one hour each way. Therefore, the amount of the vacancy that the spare officer could fill is not so much greater than what the Applicant could do under her proposed arrangement.

c. This is further compounded as the spare officer may have a different start and finish time than the branch where the vacancy exists. Some branches in the region have a night shift of 17:00 to 07:00 but the spare may be filling a vacancy where the shift is 18:00 to 08:00. The other officer would therefore be single responding for one to two hours at the end of the shift.

9. On occasion, these shifts would not be filled at all, and the other officer would be required to single respond for the whole shift. Having the Applicant work between 21:00 and 06:00 is a clear benefit in comparison.

10. In summary, there would be some occasions where the Applicant’s proposed arrangement would result in another paramedic single responding for a brief period but overall, the Applicant’s proposal would provide similar or greater coverage of these shifts than the status quo.

11. The Applicant accepts that there would be some nights where there was no unexpected vacancy. On those occasions, she would be a surplus resource and could be utilised as a single responder. This would impose some cost on the Respondent. However, the Applicant believes that these occurrences would be unusual given the number of vacancies that have been occurring and the number of branches she has indicated she could work at. Further, the additional cost would be mitigated by the additional resource and the resultant benefit to the community.

12. Therefore, in assessing whether the Respondent had reasonable business grounds for refusing the Applicant’s FWA request, the Applicant submits that the Commission should consider the following:

a. Can the Applicant be utilised in the manner that she describes? The Applicant says that she can. It would not be unreasonably onerous for the Respondent to consider utilising the Applicant in these circumstances, rather than using the overtime list or the sending messages to all operational staff. In fact, it would introduce a degree of certainty about how vacancies could be filled on these nights.

b. Are there a sufficient number of vacancies occurring that the Applicant would be regularly utilised in this manner and would not be a surplus resource? The Applicant says that there are and that this is demonstrated by the number of messages she receives indicating that vacancies cannot be filled by spares or the overtime list.

c. If the answer to the first two questions is yes, are there any other reasons why the arrangement would be detrimental to the Respondent and would constitute a reasonable business ground for refusing the FWA? The Applicant says that there are not. On balance, any administrative issues in implementing this arrangement would be mitigated by the improved service delivery and/or reduced cost to the Respondent, by having shifts filled by an officer on normal time rather than overtime.”

Right to request clauses

[32] In the present matter the relevant clause is clause 23. It provides as follows:

“23.1 Employees with twelve (12) months of continuous service with the Employer, including casual employees who have been employed by the Employer on a regular and systematic basis for at least 12 months and who have a reasonable expectation of ongoing employment with the Employer on a regular and systematic basis, may request a change to working arrangements as a flexible work arrangements (FWA) in specified circumstances (Specified Circumstances).

23.2 The request must:

(a) be made in writing;

(b) set out the details of the change sought; and

(c) set out the reasons for the change.

23.3 The Specified Circumstances are if the employee:

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

(c) is a carer within the meaning of the Carer Recognition Act 2010 (Cth);

(c) has a disability;

(d) is 55 years or older;

(e) is experiencing violence from a member of the employee’s family;

(f) provides care or support to a member of their immediate family or a member of the employee’s household who requires care or support because they are experiencing violence from the members’ family;

(f) has a medical condition that requires an FWA; or

(h) is transitioning to retirement in accordance with a documented and agreed

retirement plan.

23.4 The Employer may only refuse the request on reasonable business grounds.

23.5 Where a request for a FWA is rejected by the Employer, the Employer must provide

reasons in writing for the refusal as per section 65(6) of the Act.

23.6 The Employer must give a written response to the request for an FWA within 21 days, stating whether the Employer grants or refuses the request as per section 65(4) of the Act. If the request for an FWA is approved, the Employer will confirm in writing the change to the employee’s working arrangements, including the period of time that the change will operate.

23.7 Where an employee is working in accordance with an approved FWA and is required to complete any education or training requirement, including but not limited to a clinical induction, bridging or remedial program (CIBoR) during the term of the FWA, the Employer will take into account the personal and family circumstances of an employee when facilitating this requirement.

23.8 Clause 11 of this Agreement does not apply to this clause except where the subject matter of the grievance or dispute arises under clause 23.4 or section 65(5) of the Act.”

[33] Unlike in the relevant clause in Emery, clause 23 does not expressly provide that the request “must be … assessed by the employer, in accordance with the provisions of section 65 of the FW Act.”

[34] Further, it will be noted that clause 23 differs from section 65 of the FW Act. It provides that,

Employee may request change in working arrangements

(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.

Note:      Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(1A) The following are the circumstances:

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

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

(c)  the employee has a disability;

(d)  the employee is 55 or older;

(e)  the employee is experiencing violence from a member of the employee’s family;

(f)  the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

(1B) To avoid doubt, and without limiting subsection (1), 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.

(2)  The employee is not entitled to make the request unless:

(a)  for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

(b)  for a casual employee—the employee:

(i)  is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and

(ii)  has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

(2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment converted under Division 4A of Part 2-2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.

Formal requirements

(3)  The request must:

(a)  be in writing; and

(b)  set out details of the change sought and of the reasons for the change.

Agreeing to the request

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

(5)  The employer may refuse the request only on reasonable business grounds.

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), 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.

(6)  If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

[35] The major difference between the present clause 23 and section 65 is that clause 23 does not include the non-exhaustive list of what might be considered reasonable business grounds (s.65(5A)). However, although there is a difference between clause 23 and the clause in Emery, noting that clause 23 twice refers to clause 65 I think the better view is that, in determining the meaning of clause 23, it was the objective intention of the parties to mirror the statutory scheme. I think it is relevant to have regard to section 65(5) of the FW Act in determining what “reasonable business grounds” means in clause 23.

[36] It should be noted, however, that following the passage of the Fair Work Legislation (Secure Jobs, Better Pay) Act 2022 that clause is soon to be replaced. Consequently, sections 65(4) to (6) will be repealed and after section 65 the following sections 65A, 65B and 65C will be inserted:

65A Responding to requests for flexible working arrangements

Responding to the request

(1)  If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.

(2)  The response must:

(a)  state that the employer grants the request; or

(b)  if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the request—set out the agreed change; or

(c)  subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).

(3)  The employer may refuse the request only if:

(a)  the employer has:

(i)  discussed the request with the employee; and

(ii)  genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and

(b)  the employer and the employee have not reached such an agreement; and

(c)  the employer has had regard to the consequences of the refusal for the employee; and

(d)  the refusal is on reasonable business grounds.

Note:     An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).

(4)  To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee’s working arrangements if the employer would have reasonable business grounds for refusing a request for the change.

Reasonable business grounds for refusing requests

(5)  Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

(a)  that the new working arrangements requested 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;

(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;

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

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

Note:     The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

(6)  If the employer refuses the request, the written response under subsection (1) must:

(a)  include details of the reasons for the refusal; and

(b)  without limiting paragraph (a) of this subsection:

(i)  set out the employer’s particular business grounds for refusing the request; and

(ii)  explain how those grounds apply to the request; and

(c)  either:

(i)  set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or

(ii)  state that there are no such changes; and

(d)  set out the effect of sections 65B and 65C.

Genuinely trying to reach an agreement

(7)  This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.

65B  Disputes about the operation of this Division

Application of this section

(1)  This section applies to a dispute between an employer and an employee about the operation of this Division if:

(a)  the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and

(b)  either:

(i)  the employer has refused the request; or

(ii)  21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 65A.

Note 1:   Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2:  Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

(2)  In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

(3)  If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

(4)  If a dispute is referred under subsection (3):

(a)  the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b)  the FWC may deal with the dispute by arbitration in accordance with section 65C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

(5)  The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(a)  resolving the dispute; or

(b)  the FWC dealing with the dispute.

Note:          A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

65C  Arbitration

(1)  For the purposes of paragraph 65B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

(a)  if the employer has not given the employee a written response to the request under section 65A—an order that the employer be taken to have refused the request;

(b)  if the employer refused the request:

(i)  an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or

(ii)  an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

(e)  if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee’s request under section 65A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;

(f)  subject to subsection (3) of this section:

(i)  an order that the employer grant the request; or

(ii)  an order that the employer make specified changes (other than the requested changes) in the employee’s working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a).

Note:          An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee’s request, and could set out matters that must be included in the response or further response.

(2)  In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.

(2A)  The FWC must not make an order under paragraph (1)(e) or (f) that would be inconsistent with:

(a)  a provision of this Act; or

(b)  a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

(3)  The FWC may make an order under paragraph (1)(f) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

(4)  If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.

(5)  If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:

(a)  for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or

(b)  for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.

Contravening an order under subsection (1)

(6)  A person must not contravene a term of an order made under subsection (1).

Note:          This subsection is a civil remedy provision (see Part 4-1).

[37] In short, the legislative change:

a) strengthens employer obligations when considering a request for flexible working arrangements (based on the FWC’s model award term), in that it requires an employer to:

i. discuss the request with the employee; and

ii. genuinely try to reach an agreement with the employee about making changes to the employee’s working arrangements.

b) introduces dispute resolution provisions that amongst other things, enable the Commission to arbitrate where the employer has refused a request or failed to respond within 21 days,

c) introduces civil penalties; and

d) expands the circumstances in which an employee may make a request to include where:

i. the employee is pregnant, or

ii. the employee, or a member of their immediate family or household, experiences ‘family or domestic violence’.

[38] It will be observed that the new provisions (other than in respect of compulsory arbitration) substantially mirror the relevant clause in Modern Awards. That is to say, the provisions are not entirely new.

[39] Further, nothing in the new provisions alters the threshold of “reasonable business grounds” and the non-exhaustive list of examples.

[40] The new provisions were the subject of a Senate Inquiry. Many submissions were made. 60 Employer organisations largely opposed the new provisions. Concerns raised included that:

a) the new provisions empowering the Commission to arbitrate disputes regarding flexible work arrangements:

i. infringes on an employer’s right to make independent and appropriate business decisions. 61

ii. undermines the capacity of all employers to determine what might constitute reasonable business grounds for the business that they run. 62

iii. represents an unjustified interference with managerial prerogative and business needs, but also represents an unreasonable overreach by empowering the Commission to arbitrate these matters, and by and large these issues are resolved at the workplace level and should remain at that level. 63

iv. will impact other staff as they will have to “take up the slack and incur more duties” if the Commission forces a business to allow flexible arrangements for a new parent. 64

v. are not appropriate because the Commission

A. is not well placed to determine the operational impacts on businesses for flexible working arrangements requested by individual employees. 65

B. should not step into the shoes of the employer to review business decisions. 66

C. is not appropriately equipped to second guess the decision of the employer about their business matters. 67

D. may not have access to the necessary expertise to properly evaluate what would be a valid business reason for the industry concerned, as this will vary considerably across sectors and businesses. 68

vi. as arbitrator “with incomplete information [the Commission will be able to substitute] its subjective assessment for the informed assessment of those who know the operations of the business best. This can create a situation where an employer is unable to provide conclusive evidence to support the existence of the business ground for refusal, which may often only be able to be discerned by the employer who has a unique understanding of the operation of their enterprise.” 69

vii. processes will place an unreasonable burden on employers whose business judgement is challenged, notwithstanding its obligation to explain its decision, to then have to educate a Commission member as to why this decision is necessary for their business. 70

b) the new provisions are likely to add significant unnecessary administrative burden and cost to the Commission 71 and will result in additional costs, delays and uncertainty for employers.72

c) given the circumstances which give rise to the ability to make a flexible work request, remedy against an egregious refusal may be obtained under existing state or federal anti-discrimination law. 73

d) the addition of mandatory arbitration is likely to be low impact from practical perspective. 74

[41] The “managerial prerogative” argument is well travelled. However, under the new legislative scheme arbitration is a last resort. Conciliation and mediation have primacy. The Commission may make an order only if it is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order. 75

[42] Noting that the Commission has been invested by parties with the power to determine disputes about requests for flexible work, it cannot be said that this is new work for the Commission. The present matter is evidence of that.

[43] The Commission provides a forum that is quick, informal and avoids unnecessary technicalities. 76 For the period 2017-18 – 2021-22 (to 30 April 2022):

a) 50% of single-Member reserved decisions were handed down within an average of 22.4 days from the date the decision was reserved; and

b) 90% of single-Member reserved decisions were handed down within an average of 94 days (13 weeks) from the date the decision was reserved. 77

[44] In the present matter this decision is being issued eight weeks after the transcript was received from the external provider. No other tribunal exercising powers under existing state or federal anti-discrimination law could hear and determine a matter in such a short timeframe.

[45] Further, it should be recognised that it is not a subjective assessment that is made by the Commission. As is clear from Emery, “reasonable business grounds” are assessed on an objective basis.

[46] To the extent that the Commission has “incomplete information” to form that objective assessment that is a matter for the parties who lead evidence before the Commission. It seems a somewhat extraordinary submission that employers should be able to reject flexible work requests in circumstances where they cannot provide evidence of their reasonable business grounds where matters concern “impracticability, inefficiency or the impact on customer service.” 78

[47] The new provisions were supported by representatives of workers, 79 parents80 and others.81 Professor Rae Cooper AO observed that,

“The research evidence suggests that there had been a significant undersupply of “good flexibility” where workers have some control and choice in the type of flexibility they access at work. Informality and for information flow has characterised practice to date. (Cooper and Baird 2015). Having better guardrails (such as the need for employer to discuss the decision with the employee, setting out reasons for decision, genuinely trying to reach an agreement, right to appeal decision) should make for a better process and access to “good flexibility”. I note that refusal on “reasonable business ground” is allowed, and that this is very broad and open to interpretation.” 82

Consideration

[48] In the present matter I am satisfied that Ms Fyfe:

a) had 12 months of continuous service (clause 23.1);

b) made an application as required by the terms of clause 23.2;

c) qualified for Special Circumstances because she is a parent of a child who is school age or younger (clause 23.3(a)); and consequently,

d) was entitled to make an application for a change to working arrangements as a flexible work arrangement.

[49] I am further satisfied that in agreeing to clause 23 in the Agreement AV “intended that [its employees should have] 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.” 83

[50] For these reasons, with respect I am not inclined to follow the opinion expressed by Deputy President Bell in The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police 84 (Azmi), to the effect that, in considering reasonable business grounds,

“there is no requirement to balance [the employee’s circumstances] against the grounds advanced by the employer.” 85

[51] The use of the word “reasonable” imports a requirement that there be some form of balancing. For these reasons I prefer to follow the reasoning of Vice President Lawler in Brimbank. A balanced assessment would include a consideration of the fact that,

“Flexible work arrangements increase the overall availability of labour by allowing working parents to balance work and family life in a satisfactory way. This is associated with reduced staff turnover, increased productivity and improved employee health and well-being.” 86

[52] All of the outcomes from implementing flexible work (set out above), also benefit employers and the economy. There is no evidence that AV considered how it might benefit from allowing Ms Fyfe to work flexibly.

[53] Ms Fyfe’s FWA request (NF2) was made on 21 February 2022 (with a correction made on 28 February 2022) for a proposed commencement of 19 September 2022. At the time Ms Fyfe was on maternity leave. In section 2 the Applicant outline her “preferred” FWA roster configuration (see above facts). The Applicant then explained her reasons for the FWA request. The proposed duration was 12 months.

[54] The Applicant gave evidence 87 that,

28. “As an officer on an FWA, I was happy to be allocated as a "spare" or "flexible spare". A spare officer commences work at their normal location but can then be sent to fill a vacancy within a reasonable distance. A flexible officer can be contacted outside of work hours to be assigned to fill a vacancy at another branch and will then commence the shift at that other branch.

29. I had indicated that I would be able to work at any branch that was within one hour's travel time of my home. There are eleven branches that meet this requirement: Kilmore, Wallan, Seymour, Broadford, Yea, Alexandra, Euroa, Nagambie, Ramsey, Shepparton and Murchison.

….

32. In requesting to work night shift between 2100 and 0600, my intention was that I would be utilised to fill vacant shifts that would otherwise go unfilled. I would be able to work for nine hours, and an ambulance would be in service for that time which would otherwise be dropped, or alternatively we would have a two-person crew for that period where we would otherwise have an officer single responding and therefore unable to transport a patient.”

[55] Ms Fyfe then gave further evidence about how she proposed the flexible spare proposal would work. 88 It should be noted that, for the most part and ideally, spare or flexible spare are rostered for the entirety of the shift. In respect of the Applicant, she would only be rostered for 9 hours. Obviously, that is not ideal from an operational perspective. However, Ms Fyfe is not asking AV to create a special roster for her. She wants to do her best to fit in with AV’s operational needs (which, in the 6 months from March 2022 to August 2022, saw 147 unfilled night shifts).89 As Ms Fyfe correctly identified AV has a “strong operational demand for night shifts in [the region].”90

[56] Before me the Applicant explained,

“I am trying to do my fair share of night shifts and I am asking to be used to fill the holes that already exist. I am not asking for them to create a shift. I’m not asking them to – that I’m only going to work out of one branch. I am saying to them, ‘I am happy to do my fair share of night shifts and I will fill the holes that would otherwise go unfilled.” 91

[57] The Respondent submitted that I should ignore this evidence. Before me, Mr Harrington objected to the evidence on jurisdictional grounds. 92 In its Outline of Closing Submissions, AV contended that,

“10. In point of fact, [the] proposal to work flexibly as a flexible spare did not form part of the First FWA Request. It was not and could not be the subject of the 9 March Refusal.

…

“12 … Ms Fyfe’s evidence about her commitment to work as a flexible spare across up to 11 branches is irrelevant and inadmissible to the Question as posed.”

[58] I disagree and I dismiss AV’s objection. Although I accept that the FWA application did not expressly state “I will work as a flexible spare across up to 11 branches”, it necessarily follows from the nature of the application that Ms Fyfe:

a) would be a spare (and could be a flexible spare); and

b) could be allocated across the region.

[59] In this regard I accept Mr Gardner’s submission that the flexible spare arrangement across 11 branches,

“didn’t need to be advanced specifically in the FWA application. It’s understood in Ambulance Victoria in rural branches that an officer who is on an FWA is spare, and the nature of being spare, as it’s been outlined in … the evidence of most of the witnesses, is that you can be directed to work at another branch.” 93

[60] It is very clear from Mr Lieu’s email response on 28 February 2022 that he, on behalf of AV, understood that that the Applicant was making herself available for placement within the Region. He wrote,

“The shortened NS (night shift) hours realistically won’t be feasible and most likely will get rejected as there are no resources at those hours in the region – this is dictated by the People & Culture team who make the guidelines for FWAs I believe.”

[61] Other email correspondence also refers to considerations applicable to Hume 1 ASA. It is inconceivable that AV thought Ms Fyfe’s FWA was intended to confine her to the Kilmore Branch.

[62] AV witnesses conceded that they understood that, if Ms Fyfe was on an approved FWA, she would be treated as a spare. In particular, AV’s Acting Regional Director for the Hume Region, Narelle Cap stated,

“50. All paramedics working under a FWA work ‘spare’ shifts. The paramedic is ‘spare’ because they are not allocated to their regular line of funded shifts. However, the paramedic is not ‘spare’ in the sense of not being utilised by AV. When a paramedic is ‘spare’ they will be allocated by the rostering team to fill vacancies in the roster at their home branch or other branches within the LGA or within a reasonable distance of their home branch….” 94

[63] Before me Ms Capp confirmed her understanding that the Applicant would be spare and potentially a flexible spare. 95 Ms Capp said she understood this at stage 2 of the grievance.96 It is not clear to me why AV did not understand this on 21 February 2022 when the FWA was made. It underscores why AV should have engaged in a dialogue with the Applicant before it refused her FWA.

[64] Such a treatment afforded AV considerable flexibility, especially if they treated Ms Fyfe as a “reserve or flexible spare.” The Applicant could have been placed as a flexible spare at any one of 11 branches. If AV did not understand this (and, in honesty, they must have or otherwise failed to understand Ms Fyfe’s request), then they might have benefited from having a conversation with Ms Fyfe before rejecting her FWA (I say more about the failure to discuss the FWA with Ms Fyfe below).

[65] Consequently, I accept the Applicant’s evidence. In making her request for a FWA, it should always have been understood that the Applicant was offering to work as a “flexible spare”. This means Ms Fyfe would be paid an allowance to travel to allocated locations. As Ben Wienet, AV Manager in the Rosters Department, explained,

“[Flexible] spares are allocated to branches or areas to which they can reasonably travel – that is within a reasonable distance of the person’s home location. They are allocated as far in advance as possible, but sometimes this is on the day on which the shift is schedule.” 97

[66] For these reasons, in assessing “reasonable business grounds”, the “business” is not that which is conducted at the Kilmore Branch alone. The “business” is the business of AV conducted in the “Hume 1” Ambulance Service Area. The broader area is properly to be considered the “business” because resourcing decisions are made at that level. So much so is apparent from the evidence.

[67] The other aspect of the request is that it should properly have been seen as one available for review by an employer. The Applicant herself proposed the duration of 12 months. 98

[68] The basis for the request (the need to look after young children when her partner is unable to), necessarily means that AV could have accepted the request and applied a review period; either that proposed by the Applicant, some other period or one related to some event; for example: when the children got older (currently all 3 children are aged 5 years or younger), or when the Applicant’s partner’s work arrangements changed 99, or when other child minding options became available.

[69] I note that in its submission to Senate Inquiry (referred to above), the Australian Hotels Association suggested that,

a) the new provisions “include an ability for the employer to apply to the FWC to have the orders reviewed at a certain point after they are made (e.g., 3 or 6 months), at which point the FWC could assess their appropriateness against any evidence of their impact on the business during their operation, and either confirm, revoke, or amend them accordingly.

b) …. an order made under section 65C should be deemed ineffective (without any further involvement of the FWC) if the employee’s circumstances change insofar as they would no longer qualify to make the request on the basis it was made.”

[70] While these suggestions were not adopted in the new provisions, there is no reason why an employer cannot build in a review mechanism when it approves a request for flexible working arrangements. Had AV engaged in a dialogue with Ms Fyfe, and genuinely tried to reach agreement with her, AV could have built in a review mechanism.

[71] I am further satisfied that AV complied with its obligation to provide reasons in writing for its refusal (clause 23.5) and that it did so within 21 days (clause 23.6). In rejecting the FWA application, on 9 March 2022, AV wrote:

“As per our phone conversation, Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration.

If you are able to consider this with future applications, it would be appreciated.

While I appreciate this may not be the response you were hoping for when considering your own personal circumstances and that of supporting Hume 1 with increased overnight resourcing however, we are currently not in a position to offer this level of roster variation.”

[72] No further explanation was provided.

[73] There were 16 days between when Ms Fyfe made her first FWA request and when it was rejected. At no time in that period did representatives of AV meet with Ms Fyfe. This is despite the fact that the Applicant wrote on 28 February 2022,

“I … will follow whatever process is required re negotiations.” 100

[74] On 9 March 2022 there was a telephone conversation between the Applicant and Tim Clancy (Senior Team Manager – Mitchell LGA) during which she was informed that, “It can’t be done. We will need to find a car for her because the (night) shift doesn’t exist”. An email was then sent on 9 March 2022 confirming the same (as set out above).

[75] What is evident from the chronology of events is that there was no genuine attempt to reach an agreement with the Applicant about her FWA request. It will be noted that discussions with an employee and genuinely trying to reach agreement will be expressly provided for when the new provisions become operational. 101

[76] Although clause 23 does not contain the express reference to discussions and genuinely trying to reach agreement (as is proposed in the new legislation or in clauses that were before Commissioner Wilson in Emery and Deputy President Bell in Azmi), it is difficult to see how I can make a finding that AV had reasonable (i.e. affected by reason and sound judgment) business grounds if it did not have a discussion with Ms Fyfe and seek to reach an agreement with her. AV acted unreasonably, and that unreasonableness infected its decision.

[77] As Deputy President Bell observed in Azmi, 102

s.65 of the Act does not contain an express obligation to discuss the request and to genuinely try to reach agreement … – although it might be presumed in the ordinary course that there would be some discussion to that effect. 103

[78] In making the above observation the Deputy President referenced paragraph [269] of the Explanatory Memorandum to the Fair Work Bill 2008, it provided that,

269. Rather than refusing a request, it would be open for an employee and their employer to discuss the request and come up with an approach that would accommodate the needs of both parties.

[79] In Emery, Commissioner Wilson also held that,

“it is instructive that alternatives are intended by the explanation. Instead of refusing a request, it is open for an employee and their employer to “discuss the request and come up with an approach that would accommodate the needs of both” and that there may be a discussion between parties even where an employee may not be eligible to make a formal request.” 104

[80] I concur with both the Deputy President and the Commissioner in this regard. AV should have tried to genuinely reach agreement with the Applicant. Absent that attempt, any purported reasonable business grounds were vitiated by the failure to do so.

[81] The reason advanced by AV (that “Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration”) has all the hallmarks of Carol Beer’s drolly-delivered catchphrase in the sketch comedy TV programme Little Britain: “Computer says ‘No’”.

[82] Noting that AV did not meet with Ms Fyfe to discuss the proposed change to night shift, AV would have been well advised to follow the Best Practice Guide to Flexible Work Arrangements published by the Fair Work Ombudsman. 105

[83] I must apply the principles to be drawn from Emery. In doing so, I am satisfied that:

a) the request made by the Applicant was “actually a request for a flexible working arrangement.”

b) the employer was obliged and did comply with its obligation to provide a written response (although the reasons advanced on 9 March 2022 are thin).

c) the business grounds that the employer contends are reasonable were communicated on 9 March 2022.

d) it is the intent of clause 23 to provide for flexible working arrangements.

e) in the present matter the employer does not assert that:

i. cost is the reason for the refusal; nor

ii. there are costs “over and above what may be regarded as inevitable small adverse impacts.”

[84] What I need to determine is whether, on an objective basis, the Respondent had reasonable business grounds for refusing the Applicant’s request.

[85] As Vice President Lawler observed in Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council, (Brimbank) 106

[15] Almost all requests [for flexible work arrangements] 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 an employer] 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 [the right to request flexibility] 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.

[86] In the present matter I adopt the same approach in relation to the meaning of “reasonable business grounds” in clause 23.4 of the Agreement.

[87] The onus of establishing reasonable business grounds lies with the employer. 107

[88] In the present matter AV “must point to costs 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.” 108 It did not do so on 9 March 2022. All it wrote was,

“Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration.

…, we are currently not in a position to offer this level of roster variation.”

[89] What was left unanswered on 9 March 2022 was “why not?”

[90] On 22 March 2022 the Applicant sought confirmation that her rostering options had been formally rejected. 109

[91] On 29 March 2022 AV confirmed with Ms Fyfe that,

a) “we currently can’t provide shifts that do not align with your home or branches in the region.” and

b) “[the] options don’t meet operational demand.” 110

[92] Because the parties to the Agreement clearly intended for clause 23 to operate consistent with the relevant provisions in the FW Act, I think it is also relevant to have regard to the matters listed in section 65(5A) of the FW Act. It provides that,

(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), 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.

[93] Before me AV attempted to explain why Hume 1 could not provide shift and finish times outside the Employee’s Team roster configuration. AV contended that,

4. … In summary, the refusal of the FWA occurred because:

a) AV is unable to accommodate unfunded shifts as it does not align with AV's service delivery model and its operational need to provide safe and compliant health services to the community;

b) AV's rosters are driven by the needs of the community its branches service, in terms of the number of personnel and shifts required and the resources (ambulances) available;

c) the requested bespoke rostering was likely to have a significant impact on AV’s operation of the Kilmore branch, the broader Mitchell LGA and the Hume Region if the FWA were granted. There was an unfunded cost. Granting the FWA would lead to inefficiencies and reduced service levels during night shift in a rural and remote location. AV has 6,000 operational staff. Aside from the significant issue of whether a shift is funded, and therefore needed by the community, it would be impossible to deliver AV's critical services if paramedics worked to individual rosters;

d) AV is not opposed to negotiating a FWA that assists Ms Fyfe and her family responsibilities, and it has offered her other forms of flexibility within its existing funded shift structure, based upon standard shift starting and finishing times. 111

[94] None of the above was explained to the Applicant when her FWA was rejected on 9 March 2022.

[95] The best explanation of the alleged problems arising from Ms Fyfe’s proposal to change start and finish times on night shift was provided by Mr Weinert. However, he only became involved in the matter on 11 August 2022. 112 That is to say, all the problems Mr Weinert identified cannot have been in the mind of the decision maker on 9 March 2022. In any case, I accept that it is entirely reasonable for AV to want to:

a) have two officers working on each shift; and

b) fill the entire 14-hour night shift, whether by:

i. allocating a “spare” or “reserve/flexibly spare” who is available to work 14-hours;

ii. employees on the overtime list; and then

iii. employees volunteering to do overtime.

[96] There can be no criticism made of AV in trying, as a default point, to fill the entire shift.

[97] However, properly understood, nothing in Ms Fyfe’s FWA prevented AV from giving priority to filling the entirety of all 14-hour shifts by two officers.

[98] In Emery Victoria Police put forward two reasons to the applicant in that matter as to why the request could not be approved. Later, and only after the matter had progressed to the Commission, did Victoria Police put three further potential reasons as to why the request should not be approved. Commission Wilson observed,  113

[105] As a result the third, fourth and fifth reasons advanced by Victoria Police must be viewed as no more than purported reasons for decision on its part and not its actual reasons.

[99] The same can be said in the present matter in relation to the matters advanced before me at the hearing.

[100] In any case the following can be said about the reasons now advanced by AV:

a) Unfunded shifts.

Properly understood, Ms Fyfe’s request for a FWA will not result in unfunded shifts. This is because, if she was an employee on an FWA, she could be treated as a flexible spare. She could be allocated to any number of branches as a last resort, if AV was unable to fill the 14-hour shift with two officers.

b) Community need.

Properly understood, Ms Fyfe’s request for a FWA will actually assist to meet the community expectations. There was credible evidence that a number of shifts, at various locations, go completely unfilled. There are many “dropped shifts.” Therefore, as the last resort option, the Applicant would be filling a position that would otherwise be vacant. By using her as a last resort, AV would at least have an officer filling 9-hours of a 14-hour shift. From the perspective of community expectations, the Applicant’s availability would be “better than nothing.”

In answer to a question from me Ms Capp accepted that “it would be better for the community to have what, would otherwise be a dropped shift of 14 hours, filled for 9.” 114 Ms Capp also accepted that it was better than nothing to have an officer partner with another officer for 9 hours (when they could respond as a duo), rather than have the lone officer be single for the entire 14 hours.115

The other aspect of community/organisational benefit is that Ms Fyfe is a qualified clinical instructor. She gave evidence about how allowing her to work even 9 hours with a graduate would benefit a graduate (in circumstances where the 14-hour shift would otherwise go unfilled). 116 The graduate would be ‘out of service’ for a lesser period of time.

The Applicant gave further evidence about the operation of single responders 117 and how it too would be “better than nothing”. This evidence aligned with that of Ms Capp who accepted under cross-examination that, because there are fewer night shifts than day shifts, there would generally be an ambulance not in service and otherwise available at branches in Hume 1.118

c) Impact on operations of Hume Region (of bespoke rostering).

This is not a reasonable business ground.

It was held in both Brimbank and Emery that the fact that other employees might request flexible work arrangements if a FWA is granted to one employee is not a reasonable business ground for rejecting an FWA. Commissioner Wilson observed,

“[106] The other matter that requires discussion is that it was very clear in the course of conducting the case that one of the apprehensions of Victoria Police about DSC Emery’s request and no doubt one of the reasons it refused the request was that it had the perception that these requests were getting out of hand. …

[107] Brimbank recognised this dilemma, as do I, when it set forward, albeit on the basis of the relevant term under consideration, that the obligation of an employer is to determine each request on its own particular merits and not otherwise, with it being the case 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.

[108] While Clause 14 of the 2015 Agreement does not employ the same language as clause 20 in the Brimbank enterprise agreement, the 2015 Agreement provisions are of course subject to the provisions of s.65of the Act which specifically enables an employer to take into consideration factors associated with the working arrangements of other employees in forming its reasonable business grounds for refusal of a request. Section 65(5A) includes the following matters within consideration of “reasonable business grounds”, unquestionably allowing consideration of other people’s working arrangements in determination of the request at hand:“(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;”

[109] Crudely put, it may well be that an employer has no reasonable business grounds to refuse the first flexible work arrangement request which might be made. It may not even have reasonable business grounds to refuse the 30th, even on the basis of what may be worked by other employees. However, what of the 200^th request? Very plainly at some point the preponderance of approvals going before the one presently before an employer may well lead to the conclusion that there is a reasonable business ground available for the refusal of the request simply because too many other staff have arrangements in place with varying degrees of flexibility which means that the full span of unit work demands are not able to be filled by the available working hours of the available staff…”

The same observations apply in the present matter. AV may well have 6,000 operational staff, but there is no evidence that all off them (or, indeed, that any others) have asked for bespoke rosters to accommodate the Specified Circumstances set out in clause 23.3.

d) Offer of other flexibilities.

This is not a reasonable business ground. The fact that later in time AV, after its refusal on 9 March 2022, had discussions with Ms Fyfe, is not an answer to whether, as at 9 March 2022 it had reasonable business grounds to refuse the FWA request. As I have observed above, before the refusal on 9 March 2022 AV did not have any meetings or discussions with the Applicant. It made no attempt to genuinely reach agreement with her.

[101] Having regard to the request made by the Applicant and the business needs of AV there is simply no reason why AV could not have accepted the FWA request on the basis that it would:

a) treat Ms Fyfe as a ‘flexible spare’;

b) look to place Ms Fyfe at any time at any one of 11 different branches;

c) first look to fill the 14-hour spot using employees on ordinary time, spares or flexible spares on a rolled-up rate who could work for 14-hours;

d) then seek to fill the 14-hour spot by paying overtime, to those on the overtime list or by seeking volunteers to undertake overtime;

e) (as a last resort) utilise Ms Fyfe to fill at least 9-hours out of the 14-hour spot (rather than leaving it vacant in its entirety).

[102] Obviously, as Ms Capp explained, 119 the above process would not guarantee Ms Fyfe a night shift. But, where, AV has exhausted all other options to fully fill the shift, such an arrangement would address at least 64% of AV’s operational needs, partially meet community expectations, and result in the ability for Ms Fyfe to balance her work and family needs. Not to have done so, goes against common sense. It is obvious that more could have been done to reach a mutually satisfactory outcome but was not. Consequently, that renders AV’s decision unreasonable.

[103] Before me Ms Fyfe said,

"I want to give to my organisation, I want to give to my community, and I want to give to my colleagues, and the best that I can do [at this point in time] is support them for nine hours [when on night shift].” 120

[104] For the benefit of AV, her community and her colleagues, the Applicant should be afforded that opportunity.

[105] Having regard to my findings above I am led inexorably to the conclusion that at the time it refused Ms Fyfe’s request for a flexible work arrangement Ambulance Victoria did not have reasonable business grounds for its refusal and I determine the dispute on that basis.

[106] The Agreed Question is answered in the negative.

COMMISSIONER

Appearances:

Mr J Gardner, Lawyer and Industrial Officer, VAU for the Applicant

Mr N Harrington, Counsel, for the Respondent.

Hearing details:

Melbourne, 25 October 2022

Printed by authority of the Commonwealth Government Printer

<PR749464>

 1   All 3 children are aged 5 years or younger.

 2   See Applicant’s Outline of Submissions, paragraph 20, p 16 of the Tribunal Book and the Respondent’s Outline of Submissions, paragraph 9(c), p. 218 of the Tribunal Book.

 3   Note to FW Act, s.739(2).

 4   [2020] FWCA 5711, [7].

 5   Ibid.

 6   Clause 4 of the Agreement.

 7   [2020] FWCA 5711, [5].

 8   Capp Statement at [8].

 9   Capp Statement at [9]-[13].

 10   Capp Statement at [19].

 11   Capp Statement at [19].

 12   Capp Statement at [28].

 13   Capp Statement at [28]-[29].

 14   Capp Statement at [31].

 15   Capp Statement at [31]-[32].

 16   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 20.

 17   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 20.

 18   Ibid.

 19   Ibid, p 21.

 20   Ibid.

 21   Ibid.

 22   Ibid, p 21 and 22.

 23   Ibid, p 21.

 24   Ibid, p 21.

 25   Ibid, p 21.

 26   Witness Statement of Tim Clancy dated 7 October 2022, at Tribunal Book p 510.

 27   Ibid.

 28   Ibid.

 29   Ibid.

 30   Witness Statement of Michael Atkinson dated 7 October 2022, at Tribunal Book p 292.

 31   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 22.

 32   Ibid.

 33   Ibid.

 34   Witness Statement of Michael Atkinson dated 7 October 2022, at Tribunal Book p 294.

 35   Witness Statement of Tim Clancy dated 7 October 2022, at Tribunal Book p 512.

 36   Witness Statement of Edward Lieu dated 7 October 2022, at Tribunal Book p 239.

 37   EL-2.

 38   Witness Statement of Ben Weinert dated 7 October 2022, at Tribunal Book p 256.

 39   Ibid. It should be noted that Mr Finlay, the Resource Planning Officer, was in error. As Mr Weinert explained “it appears … that Mr Finlay provided this feedback without picking up that Ms Fyfe was proposing to work shortened night shift times. That is a major consideration because the ‘shifts’ she was asking to work are unfunded.”

 40   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 25.

 41   Ibid.

 42   Ibid.

 43   Ibid.

 44   NF3.

 45   Ibid.

 46   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 25.

 47   NF4.

 48   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 26.

 49   NF5.

 50   NC-9.

 51   NC-10.

 52   Witness Statement of Narelle Capp dated 7 October 2022, at Tribunal Book p 399.

 53   NC-11.

 54   NC-12.

 55   Ibid.

 56   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 27.

 57   [2014] FWCFB 7447 (‘Golden Cockerel’).

 58   [2017] FWCFB 3005 (‘Berri’).

 59   https://www.macquariedictionary.com.au/

 60  https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/SecureJobsBetterPay/Submissions

 61   See the submission made by the Australian Meat Industry Council, p4.

 62   See the submission made by the Master Builders Australia, p.18.

 63   See the submission made by Housing Industry Association, p.19.

 64   See the submission made by the Regional Aviation Association of Australia, p. 2.

 65   See the submission made by the AiGroup, p.38.

 66   See the submission made by The Pharmacy Guild of Australia, p.4.

 67   See the submission made by the Master Builders Australia, p.18.

 68   See the submission made by the Australian Retailers Association, p. 4.

 69   See the submission made by ACCI, pp 48-49.

 70   See the submission made by the Maritime Industry Association, p. 16.

 71   See the submission made by the Australian Meat Industry Council, p.4.

 72   See the submission made by the Association of Independent Schools of NSW, p. 5.

 73   See the submission made by the Australian Hotels Association, p.4.

 74   See the submission made by the Australasian Convenience and Petroleum Marketers Association, p. 10.

 75   Section 65C(3).

 76   Section 577 of the FW Act.

 77   This includes the outlier of 2019/20 where 90% of reserved decisions were handed down within 19 weeks. If this outlier was excluded from the analysis, 90% of reserved decisions were handed down within approximately 12 weeks.

 78   See the submission made by ACCI, p. 49.

 79   See the submission made by the ACTU.

 80   See the submission made by National Foundation for Australian Women, and by The Parenthood.

 81   See the submission made by The Australia Institute – Centre for Future Work.

 82   Professor Rae Cooper AO, Submission to the Education and Employment Legislation Committee Inquiry into the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, p 1.

 83   Adopting the wording used in Brimbank, [2013] FWC 5 [20].

 84   [2022] FWC 2223.

 85   [2022] FWC 2223, [74].

 86   See the submission made by The Parenthood, p. 2. See also the submission made by the ACTU, p. 30.

 87   Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 23.

 88   Transcript PN97-108.

 89   Exhibit 48.

 90   Transcript PN138.

 91   Transcript PN138.

 92   Transcript PN424-429.

 93   Transcript PN395.

 94   Witness Statement of Narelle Capp, para 50, pp 396-397 of the Tribunal Book.

 95   Transcript PN590-593.

 96   Transcript PN594.

 97   Witness Statement of Ben Weinert, para 17(a), p 235 of the Tribunal Book.

 98   Exhibit NF2, Tribunal Book p. 203.

 99   The materials indicate that Ms Fyfe’s partner’s work has “little flexibility”. It is not apparent that they have themselves made an application for flexibly work arrangements. I observe that, all too often, the burden of “balancing” work and family falls on women. More needs to be done to change social mores to make it more acceptable for men to also request flexible work arrangements.

 100   Exhibit NF3, Tribunal Book p. 207.

 101   s.65A(3)(a).

 102   [2022] FWC 2223, [4].

 103   Although I noted that clause 14.10 in the Agreement before the Deputy President did impose such obligations on Victoria Police.

 104   [2018] FWC 5695, [42].

 105   https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/flexible-working-arrangements

 106   [2013] FWC 5.

 107   2022 [FWC] 2223, [91].

 108   Adopting the wording used in Brimbank, [2013] FWC 5 [16].

 109   Lieu Statement Annexure EL-4.

 110   Ibid.

 111   Respondent’s Outline of Argument, Tribunal Book p 216.

 112   Witness Statement of Ben Weinert, paragraph 41, p 239 of the Tribunal Book.

 113   [2018] FWC 5695.

 114   Transcript PN621-622.

 115   Transcript PN633-634.

 116   Transcript PN208-212.

 117   Transcript PN222-224.

 118   Transcript PN579-581.

 119   Transcript PN361.

 120   Transcript PN248.