Managing flexible work requests: Considerations for employers under new regime in light of Ambulance Victoria v Fyfe

On 6 June 2023, significant changes concerning the way in which an employer must consider and respond to a request for flexible working arrangements (FWAs) under section 65 of the Fair Work Act 2009 (Cth) (FW Act) became operational, following changes introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) amendments.

Among other things, the amendments require an employer to discuss the proposed FWA request with the requesting employee before a decision is made, in an effort to genuinely reach an agreement about the changes sought.

The amendments also entitle an employee to dispute an employer’s refusal to grant a FWA at the Fair Work Commission (Commission), which is a significant departure from the previous regime in which arbitration over a refusal was limited to organisations who had agreed to this arrangement in an enterprise agreement with their employees.

In this context, the recent decision of the Full Bench of the Fair Work Commission in Ambulance Victoria v Fyfe [2023] FWCFB 104 (Appeal Decision) is significant and provides important guidance concerning the manner in which the Fair Work Commission will approach disputes under the new regime.

The Fyfe litigation also confirms that well-established rostering practices and shift patterns are not immune to changes requested by employees under FWAs, including where novel or ‘bespoke’ shift arrangements are sought.

This Insight considers the implications of the Appeal Decision and provides practical guidance to employers who may be facing the prospect of arbitration of FWA disputes for the first time.

Background to the appeal

The Agreement

The proceedings concerned a request by a paramedic, Ms Natasha Fyfe, for a FWA in relation to her night shift arrangements pursuant to the AV Enterprise Agreement 2020 (the Agreement). Under the terms of the Agreement:

• Contrary to the requirements now imposed by the recently amended FW Act, Ambulance Victoria (AV) was not required to discuss the FWA request with the employee or make genuine attempts to reach agreement with them about the request.
  
  
• Employees could utilise the dispute resolution clause in the Agreement to contest a refusal, which included arbitration by the Fair Work Commission in relation to whether or not there were reasonable business grounds for the refusal.
  
  
• The Agreement did not expressly replicate the non-exhaustive list in the FW Act of what might be considered reasonable business grounds, including that the FWA would be too costly, that it would be too impractical or that it would result in a significant negative impact on customer service. The Commission nonetheless considered that the parties intended that regard was to be had to the statutory scheme.

The Agreement was supplemented by AV’s Flexible Working Arrangements Policy (FWA Policy) and Flexible Working Arrangements Procedure (FWA Procedure), which provided the operational framework for determining whether requests for FWAs were to be approved or refused. In substance, these documents — which were not incorporated into the Agreement — relevantly provided that:

• AV was committed to providing an inclusive and flexible workplace, and acknowledged the importance of FWAs for employees to fulfil a balance of their work, life and family responsibilities against operational and business requirements; and
  
  
• where possible, FWAs should start and finish according to existing roster cycles. However, it was open for employees to request arrangements which did not align with rostered start/finish times.

The request

Under AV’s established rostering practices, paramedics were rostered according to a 10/14 shift work model, consisting of 10-hour day shifts and 14-hour night shifts. Ms Fyfe’s request proposed a reduced night shift, commencing at 9 pm (instead of the usual 6 pm) and finishing at 6 am (instead of the usual 8 am), on the basis that altered night shift arrangements would allow her to care for her three young children while her partner was at work. Under the proposed changes, Ms Fyfe would work 9 hours (64%) of the traditional 14-hour night shift. She suggested this occur for a 12-month period.

AV rejected Ms Fyfe’s request. AV’s grounds for refusal as provided within the statutory 21 days included that:

• a shortened night shift simply “did not exist” at AV;
  
  
• AV was “currently not able to provide shift start/finish times outside the Employee’s Team Roster configuration”; and
  
  
• there was insufficient resourcing in the Hume 1 Ambulance Service Area (where she was based) to accommodate the request.

Ms Fyfe sought to resolve the dispute under the Agreement, which progressed to arbitration before the Commission.

First instance decision

At first instance, Commissioner Johns determined that AV did not have reasonable business grounds for refusing Ms Fyfe’s FWA (the Decision).

A critical threshold issue in the Decision was the characterisation of Ms Fyfe’s request. As noted below, Commissioner Johns found that AV should have understood that Ms Fyfe was not requesting an individual roster pattern that put her out of step with others in her branch; rather, that she was requesting to become a “flexible spare”, being an employee who could be sent to fill night shifts in the Hume 1 region more broadly that would otherwise go unfilled due to absence or illness of other paramedics.

Commissioner Johns found that:

• AV had failed to hold a discussion with Ms Fyfe or try to reach an agreement with her. Although this was not required by the Agreement, he nonetheless determined that AV’s failure to do so of itself went a substantial way to rendering its refusal unreasonable:

“[I]t 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 agreement with her.”

• Many of the reasons advanced before the Commission in the litigation had not been put to Ms Fyfe when AV rejected her FWA request in the first instance. Adopting the principles outlined in The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police [2018] FWC 5695 (Emery), this meant these were merely “purported reasons” for the decision and not AV’s “actual reasons”.
  
  Commissioner Johns held that AV’s actual reasons for the refusal were therefore “thin”, and did not include the various problems subsequently identified by AV in the proceedings, which he found could not have been in the mind of AV’s decision-maker at the time of the decision.
  
  
• In any event, there was no satisfactory evidence before the Commission as to why AV could not have utilised Ms Fyfe to fill nine hours out of the 14-hour slot on a more flexible basis. In this sense, Commissioner Johns determined that allowing Ms Fyfe to fill nine hours of the 14-hour shift was “better than nothing” (i.e. leaving the shift vacant in its entirety), considering that the evidence established that many shifts across the Hume 1 area were going unfilled.

Appeal Decision

On appeal, the Full Bench accepted that AV’s failure to hold discussions with Ms Fyfe or genuinely try to reach agreement with her — which were not the terms of the Agreement — had erroneously “permeated” Commissioner Johns’ assessment of whether there were reasonable business grounds for refusing her request, with the result that he had misconstrued the Agreement. However, in the view of the Full Bench, this was not sufficient to alter the ultimate disposition of the appeal.

It is important to note that this aspect of the Fyfe litigation has now been overtaken by the amendments to the FW Act. It is clear under the amended statutory regime that an employer must discuss a request with the employee prior to making a decision. Failure to take these procedural steps will be fatal to an employer’s refusal of a FWA request.

The Full Bench acknowledged that, broadly speaking, there were some business grounds for the refusal of the request. However, these were insufficient to establish ‘reasonable business grounds’ for the refusal.

The Full Bench concluded that AV’s initial response failed to engage with the non-exhaustive list of reasonable business grounds in the FW Act and did not evince a proper assessment of reasonable business grounds as required by the framework established by the FWA Policy and FWA Procedure. In particular, the response did not:

• demonstrate any recognition by AV that the FWA Policy contemplated employees being able to request arrangements which did not align with start/finish times under existing roster cycles;
  
  
• exhibit any meaningful engagement with Ms Fyfe’s personal circumstances, and neither with AV’s commitments in its FWA Policy and FWA Procedure to provide an inclusive and flexible workplace, nor its acknowledgment of the importance of FWAs to balance employee and employer interests; or
  
  
• indicate there had been any analysis of the potential financial impact of the request in terms of potential costs and savings, or any analysis relating to the workload implications across Hume 1.

Implications

The Decision and the Appeal Decision highlight that set roster patterns or work practices — no matter how deeply embedded in an employer’s operations — are not beyond the reach of FWAs by which novel ‘bespoke’ arrangements are sought.

However, as with all decisions concerning FWAs, Fyfe must be considered in its own context and on its own facts.

It is not the case that the Appeal Decision is authority for the proposition that an employee working within a roster-based organisation has an unimpeachable right to demand an ‘bespoke’ roster pattern.  Rather, in this particular case, Ms Fyfe was successful in establishing that AV did not have reasonable business grounds to refuse her FWA request to become a ‘flexible spare’, which amounted to a non-standard roster pattern for selected night shifts.

The Decision and the Appeal Decision also confirms a number of important elements established in previous FWA arbitrations. This includes that, in any scrutiny by the Commission of a refusal, the employer will be limited to the written reasons provided at the time of refusal.

Accordingly, and given the very short statutory timeframe for providing a response (21 days), it is imperative for businesses to proactively prepare for FWA requests, including by:

• establishing clear policies and procedures in relation to FWAs, and for businesses with such policies and procedures already in place, reviewing them to ensure they are fit for purpose in light of the reforms to the FW Act (including the need to meet with an employee to discuss the request before a decision is made, in an effort to genuinely reach an agreement about the request);
  
  
• ensuring timely support for key decision-makers before a decision is made and communicated to an employee;
  
  
• establishing efficient information-gathering and consultation processes to collate material from the employee and relevant stakeholders, in order to demonstrate engagement with the employee and proper consideration of their personal circumstances;
  
  
• establishing clear parameters surrounding which arrangements can generally be tolerated in light of the nature of the business (noting that each request must be considered on its own merits, and rigid policy positions will often be fatal to an employer’s capacity to demonstrate genuine consideration of the request and/or that it had reasonable business grounds for refusal);
  
  
• establishing quality control measures (such as sign-off requirements) to ensure that the reasons for refusal are properly articulated and evidence-based; and
  
  
• establishing internal processes to facilitate timely and high-quality decision-making.

With respect to the need for detailed business grounds, employers should be aware of the recent case of The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police [2022] FWC 2223 (Azmi) — which the Appeal Decision did not specifically address — in which Deputy President Bell issued a reminder that a letter of refusal for a FWA is ‘not a pleading’.

While this means the reasons given to the employee do not need to be approached with the forensic detail of a legal submission, the Appeal Decision confirms that it is prudent for employers to ensure that any correspondence to an employee in which a refusal is communicated contains all the relevant reasons for the refusal at the time the decision is made, and is as detailed as possible.

In addition, the Appeal Decision particularly relied upon AV’s established policies and procedures. This demonstrates that relevant policies and procedures will inform the Commission’s assessment as to the presence or absence of reasonable business grounds, even in circumstances where those policies/procedures are not incorporated into the Agreement.

Consequently, policies and procedures should be reviewed to ensure that they align with current practices and do not impose unrealistic or unworkable requirements. Even aspirational content - such as broad commitments to foster an inclusive workplace - might be considered in light of the weight given to such statements in the Appeal Decision.