Requests for a flexible work arrangement & loss of productivity

Many workers seek flexible working arrangements so that they can achieve work/life balance and juggle their other responsibilities outside workplace. However, what happens when such a request clashes with the operational needs of the business? What if it impacts business productivity?

This article seeks to outline the legislative framework and provide a summary of a recent case in which the Fair Work Commission (FWC) considered a dispute about a flexible work request made by an officer in the Victorian Police force.

Legislation

The right to make a request for a flexible working arrangement is part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract. An employer can refuse a request on “reasonable business grounds”.

Section 65(1A) of the Fair Work Act 2009 (FW Act) outlines the circumstances under which a flexible work request can be made by an employee and includes among other things being a parent who cares for children of school age, having carer responsibilities within the definition of the Carer Recognition Act 2010, being an employee who has a disability, an employee who is 55 or older, an employee is experiencing violence from a member of the employee’s family or an employee who provides care or support to a member of the employee’s immediate family or their household who is  experiencing family violence.

Furthermore, the employee is only eligible to make the request if they have completed 12 months of continuous employment or alternatively, a casual employee who is a long-term casual employee and has a reasonable expectation of continuing employment on a regular and systematic basis.

The request must be in writing outlining the change sought and the reasons for the change. These requests often relate to changes in hours and/or patterns of work. Also, given many employees have become accustomed to working from home during the COVID lockdowns, there are often requests for working for home, either for all or some days of the week.

The employer may refuse the request on “reasonable business grounds”. The FW Act sets out the basis an employer can refuse the request. The onus is on the employer to outline their grounds for refusing the request.

Refusal under “Reasonable Business Grounds”

A decision defining the scope of “reasonable business grounds” recently came down in the FWC where Victoria Police had refused a flexible work arrangement of one of its police officers who was represented by the Police Federation of Australia (Victoria Police Branch) (“TPAV”).[1]

The officer had made a request to change his roster pattern from 8 hours per day, 40 hours per week to 10 hours per day, 40 hours per week with certain permanent days off. [2] It is important to note he previously had this arrangement previously but was now moved to a new precinct.

The reasons for the request related to caring responsibilities concerning the officer’s wife and primary school-aged children. The parties were not disputing those circumstances and it was accepted that the officer was “entitled” to a request a change in working arrangements.

The question in dispute was the “reasonable business grounds” given for the refusal of the request by Victoria Police.

The officer argued that the effect of two productive shifts being loss a fortnight was not significant on the organisation. In the judgment, Deputy President Andrew Bell referred to the Explanatory Memorandum to the Fair Work Bill 2008 in relation to section 65 and flexible arrangements. [3]

His Honour considered the operational impact of the request given the current roster patterns and the fact that at any given time, 17% of the local command is on some form of leave or WorkCover. Despite attempts to backfill those vacancies, chronic staff shortages meant it did not cover the minimum operational model of Victoria Police. Importantly, His Honour accepted the evidence of the Superintendent in relation to the impact on shortfalls in staff which were persistent and not transitory.[4]

Given those circumstances, the impact of the request would mean a loss of up to 2 shifts per fortnight in which productive work could be performed. His Honour made clear this lost in productive work is “non-trivial” given the current operational staff shortfalls. [5]

His Honour concluded that Victoria Police had established reasonable business grounds on the basis that operations in the officer’s particular area command were currently experiencing a significant staffing shortfall.

Conclusion

This case illustrates how important it is to provide clear operational reasons when rejecting a request for flexible work arrangements. While there is now pressure to provide flexibility in the workplace, operational and business impacts are still the fundamental factor when considering an employee request.

This article is general in nature and is not legal advice. If you need help with an Employment Law matter, Voice Lawyers hear you. We help people navigate the complexities of the Fair Work Act and workplace relations system with confident, practical advice.

Give us a call at 02 9261 1954, email us at voice@voicelawyers.com or use the link on our website to book a consultation to speak with one of our lawyers – Kathryn Lewis (Managing Director) and Cevdet Basiacik (Senior Lawyer).

[1] The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police [2022] FWC 2223. [2] Ibid, [12]. [3] Ibid, [77]. [4] Ibid, [55]. [5] Ibid, [91]-[94]