Ms Fyfe is a paramedic employed by Ambulance Victoria. She applied for flexible working arrangements so that she manage the care of her three children. Her application was refused, and the matter proceeded to the Fair Work Commission. In Fyfe v Ambulance Victoria  FWC 49 (06 January 2023) (Commissioner Johns) the Fair Work Commission ruled that Ambulance Victoria did not have reasonable grounds to refuse the application.
The Ambulance Victoria Enterprise Agreement 2020 cl 23 provides employees the right to apply for flexible work arrangements in specified circumstances including ‘the employee: (a) is the parent, or has responsibility for the care of a child who is school age or younger …’. Clause 23(4) says ‘The Employer may only refuse the request on reasonable business grounds.’
The issue involved an application to vary Ms Fyfe’s night shift arrangements. Commissioner Johns explained (at -):
… the normal night shift commences at 6:00 pm and concludes at 8:00 am…
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.
If agreed to, Ms Fyfe would still be able to undertake 64% of the night shift.
It is this proposed change in night shift arrangements that AV rejected.
In support of her application, Ms Fyfe gave evidence (-):
… 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).
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.
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.
Turning to the factors set out in section 65(5A) [of the Fair Work Act 2009 (Cth)]:
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.
In his assessment of the evidence Commissioner Johns said (at ):
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 [Regional Director of the Hume Region] accepted that “it would be better for the community to have what, would otherwise be a dropped shift of 14 hours, filled for 9.” 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.
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). The graduate would be ‘out of service’ for a lesser period of time.
The Applicant gave further evidence about the operation of single responders 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.
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….
AV argued that it could not accept Ms Fyfe’s proposal because it was ‘not able to provide shift start and finish times outside the Employee’s Team roster configuration” (). The Commissioner was critical of AV’s approach to the request noting a failure to meet with the applicant to discuss her needs and the proposal she had submitted and to try to reach agreement. At  the Commissioner said:
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’”.
And at :
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.” 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.”
What was left unanswered on 9 March 2022 was “why not?”
Finally at :
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.
Commissioner Johns concluded (at ) ‘… 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.’ This was not an order requiring AV to accept Ms Fyfe’s application for flexible work arrangements, rather it was an order that the grounds put forward by AV for refusing the application had not been established. Given, however, that these are the only permitted grounds for refusing an application AV will, presumably, now accept the application.
This case is an example of the need for preparation and reasoning. Ms Fyfe knew what she was proposing and the circumstances that applied to AV. AV, on the other hand, appears not to have fully engaged with the proposal or made a genuine effort to understand Ms Fyfe’s needs and to try to reach agreement. It is also an example of the need for all parties to understand the relevant Enterprise Agreement that governs the employee/employer relationship. Finally, it demonstrates the value of an independent umpire. A part of the concept of the rule of law is that a person (which includes an agency like AV) cannot be a judge in its own cause. By the time a case gets to a court or commission the parties have invested in and seek to defend their position. This is a natural human reaction, but it can lead to ongoing, unhelpful circular debates. By having an umpire with no ‘skin in the game’ he or she can look at the rules (in this case the enterprise agreement), the evidence and the arguments and provide guidance to resolve the issue and give guidance to help avoid future disputes.
And with that I’m up to date
In my post Fire Rescue Victoria successfully opposes clothing company’s trade mark (February 8, 2023) I said “Due to a glitch in the software that delivered latest cases to my desk, I have missed out on reporting some relevant, recent cases. I will attend to that over the next few weeks to clear that backlog’” This is the last of the cases that I had identified. I have also answered all the questions that I’m aware of, so there’s nothing in my ‘pending’ list. Time for some time off, and if you have got a burning issue or know of any cases I’ve missed, time to send them through.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.