Under the Fair Work Act 2009 (Cth) s 65 an employee in one of the circumstances listed has the right to apply for flexible work arrangements. The listed circumstances are set out in s 65(1A). They are:

(aa)        the employee is pregnant;

(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 family and domestic violence;

(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 family and domestic violence.

Ms Farquharson is aged over 55 and an employee of CCL Label Australia, in South Australia.  Ms Farquharson is also a volunteer ambulance officer with the South Australian Ambulance Service (SAAS).  As a full time employee, she was only available to volunteer on weekends. She applied for flexible work arrangements to work longer days, but to only work Monday to Thursday and thereby have Friday to volunteer, and the weekends off. Her employer refused the request and Ms Farquharson took the matter to the Fair Work Commission – Farquharson v CCL Label Australia [2024] FWC 670 (15 March 2024). Her employer argued (at [14]) that:

… work for the South Australian Ambulance Service is not a “circumstance’ within the meaning of s 65(1A)[(aa)-(f)] of the FW Act. Accordingly, CCL Label submit that the request made by Ms Farquharson was not a request under s 65 of the FW Act. It submits that as applications … can only be made in relation to requests which fall within the meaning of s 65, the Commission has no jurisdiction to hear and determine the application.

Ms Farquharson argued (at [15]) that:

… her request is a request for a flexible working arrangement because she is above 55 years of age, and that her work with the Ambulance Service is for the public benefit.

The Commission agreed that an application had ‘to be “because of” one of the circumstances referred to in subsection (1A)’ ([21]). And, at [23] ‘Work with the Ambulance Service, whether administrative or providing medical assistance, does not fall within any of those categories, no matter how laudable or in the public interest.’ Ms Farquharson argued that her application was because she was over 55 and she wanted to manage her work/life balance as she approached retirement ([25]).

Deputy President Anderson held (at [27]-[28]):

According to the application, Ms Farquharson is doing so because at her age she seeks a better reconciliation between paid employment, work for the Ambulance Service and leisure time. That is, she is seeking a four-day working week with the respondent so that the remaining weekday can be available to work for the Ambulance Service and a two-day weekend remain available to her. Whatever their merit, these propositions appear consistent with the basis on which the request was first made at the workplace level and continues to be advanced.

Leaving aside merit, I am satisfied that there is a sufficient connection between the request and the fact that Ms Farquharson is 55 years or older. I am satisfied that the change has been requested “because of” one of the circumstances set out in s 65(1A). The required connection between the request and a defined statutory circumstance exists.

The Deputy President ordered that the matter be relisted to be determined on its merits.

Discussion

The comment by the Deputy President that he was making the decision ‘Whatever their merit’ and he was ‘Leaving aside merit’ is no suggestion that he thought the claim was without merit; in fact, the opposite. This was an application to resolve the matter of jurisdiction alone. The Deputy President was not there to decide the merits of the claim and would not want to make any announcement that might be thought to affect the further hearing of the matter. His comments are to say that no-one should think the Commission has yet determined whether the application should or should not be granted; that is for another day.

The Fair Work Act covers most (but not all) employees. The right to request flexible working arrangements as one approaches retirement is significant.  Readers of this blog will likely think that Ms Farquharson’s desire to reduce work but still volunteer, but then have more time doing neither is both understandable and commendable. 

Conclusion

It will be interesting to see the final outcome of this matter as it may have implications for many emergency service volunteers who are over 55 and who, because of that, want to continue to volunteer and who therefore want to adjust their work/volunteer/leisure mix.

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.