1. Impact on operations of Hume Region (of bespoke rostering).

It was held in both Brimbank and Emery that the fact that other employees might request flexible work arrangements if a FWA is granted to one employee is not a reasonable business ground for rejecting an FWA. Commissioner Wilson observed,

"[106] The other matter that requires discussion is that it was very clear in the course of conducting the case that one of the apprehensions of Victoria Police about DSC Emery's request and no doubt one of the reasons it refused the request was that it had the perception that these requests were getting out of hand. ...

[107] Brimbank recognised this dilemma, as do I, when it set forward, albeit on the basis of the relevant term under consideration, that the obligation of an employer is to determine each request on its own particular merits and not otherwise, with it being the case that "the fact a request has been granted to a particular employee does not provide a ground for another employee having a similar request granted.

[108] While Clause 14 of the 2015 Agreement does not employ the same language as clause 20 in the Brimbank enterprise agreement, the 2015 Agreement provisions are of course subject to the provisions of s.65of the Act which specifically enables an employer to take into consideration factors associated with the working arrangements of other employees in forming its reasonable business grounds for refusal of a request. Section 65(5A) includes the following matters within consideration of "reasonable business grounds", unquestionably allowing consideration of other people's working arrangements in determination of the request at hand:"(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;"

[109] Crudely put, it may well be that an employer has no reasonable business grounds to refuse the first flexible work arrangement request which might be made. It may not even have reasonable business grounds to refuse the 30th, even on the basis of what may be worked by other employees. However, what of the 200th request? Very plainly at some point the preponderance of approvals going before the one presently before an employer may well lead to the conclusion that there is a reasonable business ground available for the refusal of the request simply because too many other staff have arrangements in place with varying degrees of flexibility which means that the full span of unit work demands are not able to be filled by the available working hours of the available staff..."

The same observations apply in the present matter. AV may well have 6,000 operational staff, but there is no evidence that all off them (or, indeed, that any others) have asked for bespoke rosters to accommodate the Specified Circumstances set out in clause 23.3.

This is not a reasonable business ground. The fact that later in time AV, after its refusal on 9 March 2022, had discussions with Ms Fyfe, is not an answer to whether, as at 9 March 2022 it had reasonable business grounds to refuse the FWA request. As I have observed above, before the refusal on 9 March 2022 AV did not have any meetings or discussions with the Applicant. It made no attempt to genuinely reach agreement with her.

[101] Having regard to the request made by the Applicant and the business needs of AV there is simply no reason why AV could not have accepted the FWA request on the basis that it would:

a) treat Ms Fyfe as a 'flexible spare';

b) look to place Ms Fyfe at any time at any one of 11 different branches;

c) first look to fill the 14-hour spot using employees on ordinary time, spares or flexible spares on a rolled-up rate who could work for 14-hours;

d) then seek to fill the 14-hour spot by paying overtime, to those on the overtime list or by seeking volunteers to undertake overtime;

e) (as a last resort) utilise Ms Fyfe to fill at least 9-hours out of the 14-hour spot (rather than leaving it vacant in its entirety).

• [102] Obviously, as Ms Capp explained,[119] the above process would not guarantee Ms Fyfe a night shift. But, where, AV has exhausted all other options to fully fill the shift, such an arrangement would address at least 64% of AV's operational needs, partially meet community expectations, and result in the ability for Ms Fyfe to balance her work and family needs. Not to have done so, goes against common sense. It is obvious that more could have been done to reach a mutually satisfactory outcome but was not. Consequently, that renders AV's decision unreasonable.

"I want to give to my organisation, I want to give to my community, and I want to give to my colleagues, and the best that I can do [at this point in time] is support them for nine hours [when on night shift]."[120]

[104] For the benefit of AV, her community and her colleagues, the Applicant should be afforded that opportunity.

[105] Having regard to my findings above I am led inexorably to the conclusion that at the time it refused Ms Fyfe's request for a flexible work arrangement Ambulance Victoria did not have reasonable business grounds for its refusal and I determine the dispute on that basis.

[106] The Agreed Question is answered in the negative.

Mr J Gardner, Lawyer and Industrial Officer, VAU for the Applicant

[1] All 3 children are aged 5 years or younger.

[2] See Applicant's Outline of Submissions, paragraph 20, p 16 of the Tribunal Book and the Respondent's Outline of Submissions, paragraph 9(c), p. 218 of the Tribunal Book.

[4] [2020] FWCA 5711, [7].

[7] [2020] FWCA 5711, [5].

[16] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 20.

[17] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 20.

[26] Witness Statement of Tim Clancy dated 7 October 2022, at Tribunal Book p 510.

[30] Witness Statement of Michael Atkinson dated 7 October 2022, at Tribunal Book p 292.

[31] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 22.

[34] Witness Statement of Michael Atkinson dated 7 October 2022, at Tribunal Book p 294.

[35] Witness Statement of Tim Clancy dated 7 October 2022, at Tribunal Book p 512.

[36] Witness Statement of Edward Lieu dated 7 October 2022, at Tribunal Book p 239.

[38] Witness Statement of Ben Weinert dated 7 October 2022, at Tribunal Book p 256.

[39] Ibid. It should be noted that Mr Finlay, the Resource Planning Officer, was in error. As Mr Weinert explained "it appears ... that Mr Finlay provided this feedback without picking up that Ms Fyfe was proposing to work shortened night shift times. That is a major consideration because the 'shifts' she was asking to work are unfunded."

[40] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 25.

[46] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 25.

[48] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 26.

[52] Witness Statement of Narelle Capp dated 7 October 2022, at Tribunal Book p 399.

[56] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 27.

[57] [2014] FWCFB 7447 ('Golden Cockerel').

[58] [2017] FWCFB 3005 ('Berri').

[59] https://www.macquariedictionary.com.au/

[60]https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/SecureJobsBetterPay/Submissions

[61] See the submission made by the Australian Meat Industry Council, p4.

[62] See the submission made by the Master Builders Australia, p.18.

[63] See the submission made by Housing Industry Association, p.19.

[64] See the submission made by the Regional Aviation Association of Australia, p. 2.

[65] See the submission made by the AiGroup, p.38.

[66] See the submission made by The Pharmacy Guild of Australia, p.4.

[67] See the submission made by the Master Builders Australia, p.18.

[68] See the submission made by the Australian Retailers Association, p. 4.

[69] See the submission made by ACCI, pp 48-49.

[70] See the submission made by the Maritime Industry Association, p. 16.

[71] See the submission made by the Australian Meat Industry Council, p.4.

[72] See the submission made by the Association of Independent Schools of NSW, p. 5.

[73] See the submission made by the Australian Hotels Association, p.4.

[74] See the submission made by the Australasian Convenience and Petroleum Marketers Association, p. 10.

[77] This includes the outlier of 2019/20 where 90% of reserved decisions were handed down within 19 weeks. If this outlier was excluded from the analysis, 90% of reserved decisions were handed down within approximately 12 weeks.

[78] See the submission made by ACCI, p. 49.

[79] See the submission made by the ACTU.

[80] See the submission made by National Foundation for Australian Women, and by The Parenthood.

[81] See the submission made by The Australia Institute - Centre for Future Work.

[82] Professor Rae Cooper AO, Submission to the Education and Employment Legislation Committee Inquiry into the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, p 1.

[83] Adopting the wording used in Brimbank, [2013] FWC 5 [20].

[84] [2022] FWC 2223.

[85] [2022] FWC 2223, [74].

[86] See the submission made by The Parenthood, p. 2. See also the submission made by the ACTU, p. 30.

[87] Witness Statement of Natasha Fyfe dated 16 September 2022, at Tribunal Book p 23.

[94] Witness Statement of Narelle Capp, para 50, pp 396-397 of the Tribunal Book.

[97] Witness Statement of Ben Weinert, para 17(a), p 235 of the Tribunal Book.

[98] Exhibit NF2, Tribunal Book p. 203.

[99] The materials indicate that Ms Fyfe's partner's work has "little flexibility". It is not apparent that they have themselves made an application for flexibly work arrangements. I observe that, all too often, the burden of "balancing" work and family falls on women. More needs to be done to change social mores to make it more acceptable for men to also request flexible work arrangements.

[100] Exhibit NF3, Tribunal Book p. 207.

[102] [2022] FWC 2223, [4].

[103] Although I noted that clause 14.10 in the Agreement before the Deputy President did impose such obligations on Victoria Police.

[104] [2018] FWC 5695, [42].

[105] https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/flexible-working-arrangements

[106] [2013] FWC 5.

[108] Adopting the wording used in Brimbank, [2013] FWC 5 [16].

[111] Respondent's Outline of Argument, Tribunal Book p 216.

[112] Witness Statement of Ben Weinert, paragraph 41, p 239 of the Tribunal Book.

[113] [2018] FWC 5695.

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