The Importance of Well Grounded Explanations when Managing Flexible Working Arrangements

In a recent Fair Work Commission (FWC) case, it was determined that Ambulance Victoria lacked reasonable business grounds for rejecting an employee’s flexible working request related to parenting responsibilities. More cases like this could be on the horizon with the incoming Secure Jobs, Better Pay Bill changes.

Flexible working arrangements are a key part of many Australians’ professional lives. They allow employees to shift their work hours, patterns of work and/or work locations to take on other commitments such as carer and/or family responsibilities.  

While many companies have already adopted some form of flexible work post COVID-19, it’s important to remember that flexible working arrangements are an enshrined right under section 65 of the Fair Work Act 2009 (Cth) (the Act). Under the Act, companies may only refuse requests for flexible working arrangements on ‘reasonable’ business grounds.

The Decision 

Ms Natasha Fyfe was employed as an Advance Life Support Ambulance Paramedic by Ambulance Victoria.  She was also a young mother with three young children.

Ms Fyfe was rostered to work overnight shifts between 6.00pm and 8.00am.  However, Ms Fyfe requested to change her shifts so that she could work between 9.00pm to 6.00am to care for her children while her partner was at work.  Ms Fyfe’s proposed roster would allow her to work 64% of the overnight shift.  Ambulance Victoria stated that Ms Fyfe’s request was not practicable and therefore not possible.  No further explanation was given.

Ms Fyfe subsequently made an application under section 739 of the Fair Work Act 2009 (Cth) (the FW Act) for the FWC to resolve the dispute.

The Reasoning

Commissioner Johns observed that Ambulance Victoria, when refusing the request, informed Ms Fyfe that it was simply not in a position to accommodate her request.  Ambulance Victoria, at no point in time, met and/or discussed with Ms Fyfe its decision, nor did it make any genuine attempts to reach with Ms Fyfe a mutually workable agreement.

During the hearing, Ambulance Victoria offered several explanations as to why it could not accommodate the request, including that it offered alternative forms of flexibility within the current rostering structure.  But these explanations came a little too late.  The issue was that none of these points were genuinely discussed with the employee before her Ambulance Victoria declined the request.

Likening Ambulance Victoria’s refusal as having “all the hallmarks of Carol Beer’s drolly-delivered catchphrase in the sketch comedy TV programme Little Britain: “Computer says ‘No,” Commissioner Johns, applying his own initiative, offered alternative rostering arrangements (within the parameters of Ambulance Victoria’s organisational structure) which Ms Fyfe could be rostered.  “There is simply no reason why [Ambulance Victoria] could not have accepted the [flexible working arrangement] …,” he remarked and ultimately decided that Ambulance Victoria’s refusal was unreasonable.

Lessons for HR Practitioners

This case is important for two reasons.

Firstly, it serves as a precedent providing useful insight into how the FWC may consider and determine disputes concerning flexible working arrangements moving forward.  Traditionally, the Commission has generally been reluctant to intervene in matters involving flexible workplace arrangements, nor were disputes of this kind generally brought.

Secondly, the case sends a clear message to organisations reminding them that they cannot (and certainly should not) provide “lip service” or assume a “tick and flick” approach when refusing an employee’s request.

Upcoming changes

Adding fuel to the fire, the upcoming changes from the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 will provide a more stringent criteria for HR practitioners when refusing an employee’s request, requiring practitioners to specifically explain how those grounds apply to the request and, where possible, set out the proposed changes if they can be made to any extent.  These changes take effect from 6 June 2023.

This case, together with the upcoming changes, reflect the changing perceptions of flexible work which have largely been prompted by the COVID-19 pandemic.  To stress the point, HR practitioners are reminded that they should not outright reject an employee’s request for a flexible working arrangement under the guise of a “reasonable business ground.”  HR practitioners should carefully consider each and every request with the view to reach a workable solution.  If a solution cannot be reached, clear founded explanations should be provided.

If you require clarification on what this means for your business, please get in touch with one of our employment lawyers or call 1300 565 846.