In my post Application for flexible work arrangements – Ambulance Victoria (February 23, 2023) I reported on the decision of Commissioner Johns in the matter of  Fyfe v Ambulance Victoria [2023] FWC 49. Ms Fyfe is a paramedic who had applied for Flexible Work Arrangements (FWA) to better manage her personal work/life commitments. The issue involved an application to vary Ms Fyfe’s night shift arrangements.  Commissioner Johns explained (at [5]-[9]):

… 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.

The application was rejected by Ambulance Victoria (AV). The Ambulance Victoria Enterprise Agreement 2020 cl 23 provides employees the right to apply for flexible work arrangements. Clause 23(4) says ‘The Employer may only refuse the request on reasonable business grounds.’ Commissioner Johns found that AV did not have ‘reasonable business grounds’ to reject the application. In my original post I said:

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.

But AV did not, instead they lodged an appeal to the Full Bench of the Fair Work Commission – Ambulance Victoria v Fyfe [2023] FWCFB 104. 

In the original decision, Commissioner Johns had determined that AV had made no attempt to negotiate with Ms Fyfe to see if mutually acceptable arrangements could be made. Commissioner Johns said (at [102] of his judgment) ‘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.’  The issue on appeal ([22]) was whether cl 23 of the Enterprise Agreement ‘required … [AV] to genuinely try to reach agreement with the Respondent before it determined the request for a flexible work arrangement.’  AV argued that if they had ‘reasonable business grounds’ to reject the application they did not need to try to reach agreement.  Commissioner John’s approach to cl 23 and his conclusion that AV’s failure to try to reach agreement meant their grounds were not ‘reasonable’ ‘i.e. affected by reason and sound judgment’ ([15]) was, they argued an error in his interpretation of the law and further it was an error that coloured his conclusions. Had he not made that error, they argued, Commissioner Johns would have found that there were ‘reasonable business grounds’ to reject Ms Fyfe’s FWA application.

There were other arguments also going to Commissioner John’s reasoning including that he made a mistake when he said that the question of whether the ‘business grounds’ advanced by AV had to be balanced against the applicant’s circumstances.

Outcome

AV was given permission to appeal because the Full Bench agreed (at [64]) that ‘whether or not there are discussions regarding a request for a flexible work arrangement … does not form part of the assessment of whether there are reasonable business grounds for’ rejecting that application. The conclusion by Commissioner Johns that AV had acted unreasonably in not negotiating with Ms Fyfe ‘permeated his assessment of whether the Appellant had reasonable business grounds to refuse the request’ and this was an error.

Even though they were allowed to appeal, the appeal was dismissed because the Full Bench found that even with this error, Commissioner Johns had come to the correct conclusion that is there were no reasonable business grounds to reject the application. Importantly the Commission looked to the AV FWA policy and procedure documents. At [74] the Commission said:

The FWA Policy and FWA Procedure provide the parties with a framework for determining whether a request for flexible working arrangements will be approved or denied. The framework is based on the Appellant’s stated commitment to provide an inclusive and flexible workplace and acknowledgement of the importance of work/life balance, recognition of family responsibilities and endorsement of flexible working arrangements, whilst balancing operational and business requirements. The framework makes clear flexible working arrangements are not an automatic entitlement but rather, to be negotiated so as to balance the reasonable operational and business requirements and the personal needs of employees. It contemplates discussion and negotiation, albeit not in mandatory terms.

They continued (at [81]; emphasis added):

We accept there were business grounds for the refusal of the request. However, we are not … persuaded an assessment of reasonable business grounds was performed with due consideration to the operational and business requirements and the Respondent’s circumstances, as required by the framework.

That is cl 23 of the Enterprise agreement may have not specifically directed AV to negotiate with the applicant, but the FWA policy and procedure did.  At [86] the Full Bench said:

In the absence of the Appellant adequately following the FWA Policy and FWA Procedure by assessing and balancing the competing considerations involved, we are not persuaded that the Appellant had reasonable business grounds for refusing the First FWA Request.

Discussion

As with the first case this is not an order requiring AV to accept Ms Fyfe’s application. However, the right to ask for flexible work arrangements is set out in both the Enterprise Agreement and the Fair Work Act (Cth) s 65.  The Act says (s 65(5)) ‘The employer may refuse the request only on reasonable business grounds.’  A finding by Commissioner Johns, confirmed by the Full Bench, that AV did not demonstrate ‘reasonable business grounds’ would suggest they should (if not must) now accept Ms Fyfe’s application.  But they may have other arguments and given the original application was made in February 2022 and was proposed for one year, it may be that the application is no longer relevant.  If Ms Fyfe were to make a new application, then AV would have to consider whether there are now ‘reasonable business grounds’ to reject the application.

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.