Your employees may have a right to apply for flexible working arrangements, but what does this mean for your business? Where can you reasonably ‘draw the line’ when it comes to sacrificing your business objectives to allow different working conditions for employees?

The 2019 decision of the Fair Work Commission (FWC) illustrates the complexity of assessing flexible work requests in light of an organisation’s desire to effect their strategic and business goals.

In this article

• Where to draw the line on ‘reasonable’ business grounds
• Opening the floodgates for flexible work applications?
• Justifying reasons for refusing a flexible work application
• What does this decision mean for employers?

Where to draw the line on ‘reasonable’ business grounds?

In September last year, the FWC upheld on appeal the decision that Victoria Police (VicPol) lacked ‘reasonable business grounds’ for refusing a 57 year-old detective’s request for changed shift conditions.

The detective, who had served over 30 years in the job, requested that the usual shift allocation (10 x 8-hour shifts per fortnight) was ‘compressed’ (8 x 10-hour shifts per fortnight) in order to allow him an extra rest day per week as he neared retirement. He relied on clause 14 of the VicPol officer’s Enterprise Agreement, allowing officers to apply for flexible working condition if they are over 55 years of age.

However, VicPol had refused the application on what they deemed to be ‘reasonable business grounds’, stating that the proposed arrangement would:

• Impose an unreasonable financial burden on VicPol to pay the detective his full salary plus overtime allowances for effectively the same hours of work;
• Increase the risk of fatigue-related OH&S incidents associated with longer shifts and recall obligations; and
• Negatively impact the parity and productivity of the detective’s team of colleagues.

Ultimately, the Commission rejected VicPol’s arguments, holding that there was insufficient evidence to prove that the above mentioned consequences would actually eventuate if the detective’s request was granted. In coming to this decision, it did not go unnoticed by the FWC Member that the detective had only advocated for a 12-month arrangement that could then be reviewed by VicPol, a concession the FWC considered to enhance the reasonableness of the request.

Opening the floodgates for flexible work applications?

One of VicPol’s key arguments was that granting the detective’s request would lead to a ‘stampede’ of impending retirees from the police force who could point to this decision in order to demand their working conditions are altered also. Indeed, the FWC are empowered under section 65(5) the Fair Work Act 2009 (Cth) to consider a range of factors which may constitute ‘reasonable business grounds’ for the purpose of refusing a request for flexible work arrangements, including the practical effects that the changed work arrangements would have on other employees and the organisation as a whole.

In coming to his decision, Commissioner Wilson of the FWC did take into account the discontent likely to arise from other VicPol members who would be unable to earn overtime pay (as the detective would under his proposal) due to their entire shift system being based on the 8-hour shift mandate.

However, inevitably, the FWC decided that no evidence presented by VicPol could establish that accommodating the detective’s request would cause such an ‘influx’ of other officers seeking flexible arrangements that there would be a significant loss in efficiency and productivity for the organisation.

Justifying reasons for refusing a flexible work application

There is no doubt that the decision in this matter points to a necessity for employers to meticulously consider the effect of proposed arrangements when assessing flexible work applications. It is not enough to suggest that your organisation might be burdened by a request, without clearly articulating to the applicant the negative outcomes of changed working conditions for other staff members and for the organisation as a whole.

For instance, it is worth noting that Commissioner Wilson was critical of VicPol’s delay in providing additional reasons for refusing the request in the first place, as VicPol was obliged to genuinely consider all applications carefully and provide clear reasons if refused under their very own EBA (as well as under the Fair Work Act).

Furthermore, the FWC held that VicPol’s repeated attempts at trying to explain their decision to the Commission (long after the application was initially rejected) didn’t appear to amount to the actual reasons for the decision, but purported attempts at justifying it.

What does this decision mean for employers?

Employers must specify and articulate, with clarity, the ways employees can (and cannot) seek to access flexible work arrangements. This should be articulated in a clear policy/EBA clause, explained to and shared with relevant employees. Areas where flexibility requests will not be considered (and the ‘business case’ as to why this is) should be included in such policies. Doing so will mean employers have a stronger chance of avoiding costly and burdensome disputes in regards to refusing such flexibility requests.

Regularly reviewing and updating your Flexible Work Arrangement policies is one way in which you can ensure your business complies with the FW Act and any relevant EBAs. Further, it is vitally important to ensure all managers who receive requests for flexible working arrangements are well trained on your company’s policies, and understand their legal obligations under the FW Act when it comes to accepting or rejecting flexible work requests.

Impact of COVID

In considering whether or not there is a ‘business case’ to reject a flexibility request, employers must look at the business at the time that the request is made. Accordingly, if because of COVID you have less work available, or had to get rid of many staff, and do not have as much scope to offer flexibility, it is reasonable to take those factors into account.

Can we help?

Should you need any advice or assistance in reviewing or updating your Flexible Working Arrangement policies, or responding to any requests, the team at Workplace Wizards is eager to get in touch with you. For specialist assistance contact us at Workplace Wizards support@workplacewizards.com.au or 03 9087 6949