No Reasonable Basis for Refusing Flexibility Bid 

The Fair Work Commission (“FWC”) has recently found that Ambulance Victoria (“the Employer”) lacked reasonable grounds for rejecting a paramedic’s flexibility request to work ‘bespoke’ night shifts so she could care for her three young children.  

Background

Natasha Fyfe (“the Applicant”) is a young mum with three children and also an experienced Advance Life Support Paramedic having been employed by the Employer since 2015. In an attempt to balance her work and family life, the Applicant made an application to the Employer for flexibility in her shift arrangements. The Applicant proposed that she commence night shift at 9pm (rather than 6pm) and finish at 6am (rather than 8am). This arrangement would allow her to meet her childcare responsibilities by being home during the day and working at night.  

In response to the Applicants request, a senior team manager told her it could not be done as that night shift “doesn’t exist”. In a follow up email, the manager said that ambulance service area Hume 1 “is currently not able to provide shift start and finish times outside the employee’s team roster configuration” and “we are not in a position to offer this level of roster variation”. 

Ambulance Victoria told the FWC the proposed shifts do not qualify for funding and it could not accommodate unfunded shifts “as it does not align with [the Company’s] service delivery model and its operational need to provide safe and compliant health services to the community“. The Employer further argued that rosters are “driven by the needs of the community its branches service, in terms of the number of personnel and shifts required and the resources available. 

Judgement 

Commissioner Johns found that the Applicant’s request would not result in unfunded shifts because she could be treated as a flexible spare and “allocated to any number of branches as a last resort“. Given evidence that a number of shifts at various locations go completely unfilled and there are many “dropped shifts”, he said “as the last resort option, the Applicant would be filling a position that would otherwise be vacant”.

Accordingly, Commissioner Johns held that the Employer lacked reasonable grounds for refusing the flexible work arrangement under clause 23.4 of its 2020 Enterprise Agreement, noting that it did not meet its consultation obligations by meeting or discussing the request with the Applicant in the 16-days before confirming its decision. He further held that the Company “acted unreasonably, and that unreasonableness infected its decision”. 

Takeaway 

Requests for flexible working arrangements form part of the National Employment Standards (“NES“). The NES apply to all employees covered by the national workplace relations system and include a right for employees to request flexible working arrangements from their employer. This case highlights the fact that employers can only refuse such requests on ‘reasonable business grounds’.

If you have any questions about flexible working arrangements, please do not hesitate to contact Nick Stevens, Peter Hindeleh, Daphne Klianis or Josh Hoggett.