Fair Work Commission|2021-10-19

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police [2021] FWC 5983 (19 October 2021)

s.739 - Dispute resolution

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria

Application to deal with a dispute in relation to flexible working arrangements - whether Victoria Police can meet its service delivery and operational needs - whether request refused on reasonable business grounds.

[1] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria (Police Association) has made an application pursuant s.739 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission to deal with a dispute in accordance with clause 10 of the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019[1] (2019 Agreement). The dispute is in relation to clause 14 of the 2019 Agreement which allows for flexible working arrangements.

[2] In the matter before me Constable AB has been on a flexible working arrangement (FWA) since May 2020 (2020 FWA). In April 2021 Constable AB sought to vary and continue his FWA (2021 request). On 13 May 2021 Constable AB received a letter signed by Superintendent Peter Lardner advising that, following a consideration of his 2021 request, it was refused. Victoria Police/Chief Commissioner of Police (Victoria Police) says that the basis for refusal constituted 'reasonable business grounds.' Constable AB disputes this.

[3] Following the rejection of the 2021 request Constable AB raised a dispute (through the Police Association) with Victoria Police where it did not settle. The matter was then referred to the Commission in accordance with the dispute settling procedure in the 2019 Agreement.

[4] Clause 14 of the 2019 Agreement provides as follows:

14. Right to Request Flexible Working Arrangements

14.1 All positions in Victoria Police may be worked flexibly.

(a) is the parent of, or has responsibility for, the care of a child who is of school age or under; or

(b) is a carer within the meaning of the Carer Recognition Act 2010; or

(e) is personally experiencing family or domestic violence; or

(f) is providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family or domestic violence;

may request a change in working arrangements (including a change to work location) relating to those circumstances.

14.3 To avoid doubt, and without limiting sub-clause 14.2, an employee who:

(a) is a parent, or has responsibility for the care, of a child; and

(b) is returning to work after taking leave in relation to the birth or adoption of the child;

may request to work part-time to assist the employee to care for the child.

14.4 The employee is not entitled to make such a request, unless the employee has completed at least 12 months of continuous service with the employer, immediately before making the request.

14.5 Such a request must be made by the employee in writing and must set out the details of the change sought and the reasons for the change.

14.6 The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request.

14.7 Before responding to a request, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee's circumstances having regard to:

(a) the needs of the employee arising from the circumstances;

(b) the consequences for the employee if changes in working arrangements are not made;

(c) any alternative flexibility arrangements that may meet the circumstances of the employee that require flexibility; and

(d) any reasonable grounds for refusing the request.

14.8 If the employer and the employee reached an agreement under sub-clause 14.7 on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

14.9 The employer may refuse a request only on reasonable business grounds.

14.10 Without limiting what are reasonable business grounds for the purposes of sub-clause 14.9, reasonable business grounds include the following:

(a) that the new working arrangements requested by the employee would be too costly for the employer;

(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;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

14.11 If the operational requirements or the employee's circumstances change, the flexible working arrangements may be reviewed.

[5] Flexible Working Arrangements are covered by the National Employment Standards (NES) at s.65 of the FW Act.

[6] Section 55 of the FW Act provides that the NES has effect subject to any terms in an enterprise agreement (and a modern award) (s.55(3) of the FW Act) and that an enterprise agreement may include terms that are ancillary or incidental to the operation of an entitlement under the NES or terms that supplement the NES (s.55(4)). Further an enterprise agreement may contain terms that have the same or substantially the same effect as provisions of the NES whether or not ancillary or supplementary terms under s.55(4) are included (s.55(5)). To the extent such terms are included in an enterprise agreement the National Employment Standards relating to the NES entitlement apply as a minimum entitlement to the agreement entitlement.

[7] The 2019 Agreement makes it explicit at clause 3.3 that, to the extent of any inconsistency and where the NES provides a greater benefit, the NES will prevail over the terms of the 2019 Agreement.

[8] To avoid any doubt Constable AB's application for an FWA is taken to be an application made pursuant to s.65 of the FW Act and clause 14 of the 2019 Agreement.

[9] I would observe that the provisions of the 2019 Agreement do not replicate in exact terms those of the NES. In particular the wording at clause 14.2(a) differs slightly from that at s.65(1A)(1) of the FW Act and the request in the 2019 Agreement must relate to the circumstances prescribed while in the NES the request must be because of the circumstances provided.

[10] The Police Association[2] says that clause 14.2(a) should be read as the employee is the parent of, or has responsibility for, the care of the child. This suggests that the relevant circumstance is agreed between the Police Association and Victoria Police and, in this case, it is that the employee is a parent responsible for the care of a child.

[11] The difference between the need for the request to relate to the circumstance or be because of the circumstance may appear a more tangible difference. While this may be so I agree that there needs to be a nexus between the request and the circumstance of the employee - the question is how strong this nexus must be.

[12] Given my decision I do not need to determine this matter.

[13] The dispute settling procedure is at clause 10 of the 2019 Agreement. The dispute settling procedure confers a right of arbitration (clause 10.6) and does not exclude any provision of the 2019 Agreement from that arbitration. It also allows for arbitration of any request for flexible working arrangements made pursuant to s.65 of the FW Act.

[14] I am satisfied that the dispute before me is a matter arising under the 2019 Agreement. Further, I am satisfied that the dispute has been brought before the Commission in accordance with the dispute settling procedure of the 2019 Agreement. For these reasons I am satisfied that I have jurisdiction to deal with the dispute.

[15] The extent of the dispute goes to compliance with the obligations under clause 14 of the 2019 Agreement and the reasonableness of the business grounds on which Victoria Police has refused Constable AB's request for flexible working arrangements. The dispute captures whether Victoria Police has met its obligations under clause 14.7 to try and reach agreement with Constable AB and, in doing so, consider his personal circumstances.

[16] Section 739 of the FW Act states that the Commission, in determining a dispute, is not bound by the remedy sought by either party to the dispute. I deal with remedy as necessary later in this decision.

[17] Whether the request refused by Victoria Police was a new request or a variation is not relevant to the consideration required to be given. It appears that Victoria Police has a policy approach of regular reviews of an FWA entered into. Constable AB was aware such a review was taking place.

[18] The standard working week for Other Rank officers[3] is a 40 hour week worked as a 5 day, 8 hour per day roster (a 5 x 8 roster) across 7 days of the week and 24 hours a day (involving day, afternoon and night shifts).

[19] In March 2020 Constable AB applied for a FWA pursuant to s.65 of the FW Act and clause 14 of the (then) 2015 Agreement. The flexibilities he sought and which were granted were:

• Have one other day per week as a rest day on an alternating basis.[4]

[20] At the time of that application Constable AB had a 1 year old child and requested the 2020 FWA to enable him to care for his child. Constable AB's wife was working part-time on Wednesday, Thursday and Friday. Whilst his child had been enrolled in childcare, the child was removed due to COVID-19 concerns. The 2020 FWA enabled Constable AB to care for his child on Wednesdays and Fridays and his mother-in-law to care for the child on Thursdays when his wife was working.

[21] Constable AB's request for a 2020 FWA was approved on 5 May 2020 and he commenced this arrangement on 10 May 2020. The 2020 FWA was approved for 6 months and then extended for a further 6 months.

[22] In November 2020 Constable AB's child returned to childcare 1 day per week (Thursday). The child remains on a waiting list for second day of care at the time of hearing.

[23] In January 2021 Constable AB's wife returned to full-time work. Constable AB asked to retain his 2020 FWA but sought, where possible, an early start on a Monday and late starts on Tuesdays and Thursdays. This was informally accommodated where possible.

[24] In February 2021 Constable AB noticed that the time keeping system had reverted from 10 hour shifts with 3 x rest days per week to 8 hour shifts with 2 x rest days per week starting the week of 31 January 2021. On raising this with Victoria Police he was told his 2020 FWA was being reviewed but was extended to 24 April 2021 in the interim.

[25] In March 2021 Constable AB had a meeting with Acting Senior Sergeant Atwal and was advised that a review would need to be undertaken of the 2020 FWA before any changes to it could be agreed. On 21 April 2021 Constable AB returned from leave to find his timesheets 'locked' despite the extension to 24 April 2021. He spoke to Acting Senior Sergeant Egan who told him he would need to submit a further 'Issue Cover Sheet' for approval of his revised FWA.

[26] The following day Constable AB submitted a new Issue Cover Sheet (the 2021 request) seeking approval of an amended FWA. In the request Constable AB sought the following arrangement:

Have an early start on Monday and a late start on Tuesday and Thursday of each week.

• Have one other rest day per week fixed to allow for a family weekend.[5]

[27] The specific roster[6] sought by Constable AB is set out in his 2021 request as follows:

[28] Constable AB was advised in a meeting with Inspector Dean Clinton and Acting Senior Sergeant Len Pickles on 13 May 2021 that his 2021 request was rejected. Later that day Constable AB received a letter which set out the reasons for the rejection of the 2021 request. That letter said, in part:

In respect of your request, an assessment has been conducted against business requirements at Broadmeadows Police Station at this time. Management have also further considered and explored the option of alternate locations within the division, including Craigieburn and Sunbury Police Stations.

Your request has been thoroughly reviewed with consideration to your personal needs and operational service delivery requirements, and while I empathise with your situation, I am unable to accommodate your request to vary your flexible working arrangement as it stands. This is due to significant resourcing issues affecting Broadmeadows Police Station's ability to meet minimum service delivery and operational requirements.

I note that since your Flexible Working Arrangement commenced on 10th May 2020, there has been significant changes within the working environment and the operational requirements. By endorsing your request to renew and vary your flexible working arrangement, Broadmeadows Police station will experience service delivery gaps that will impact the service to the community which includes, but is not limited to:

The impact of continuing to lose two (2) operational shifts per fortnight, due to your request for maintaining 10-hour shifts and a third rest day each week, which reduces our operational capacity to maintain service delivery and increases our governance risks;

Your request would require other members to perform additional shifts and increase rotations to special operations to cover your absences. Due to current circumstances, Operation Tidewatch and Operation Sentinel are requiring additional resourcing from Moonee Valley, Moreland and from Investigations and Response as a result of Hume's reduced capacity. This resourcing impost is reducing the ability to meet operational service demands.

Demonstrations have increased which includes significant commitments requested for various state and local protects.

Currently due to resourcing issues there is an inability to effectively provide resourcing for Operation Sandstone and Operation Impactor. And there is significant reduced capacity to the High-Volume Tasking Team which your limited days would also affect.

Resourcing shortages have also seen an increase in Vehicle Crime, outstanding active briefs, warrants, whereabouts and LEAP files, with indications it will continue to rise.

Broadmeadows Police Station currently has seven (7) vacancies, with 22 members seconded or upgraded within the Division.

[29] Constable AB disputes the business grounds put by Victoria Police for the refusal of his 2021 request.

[30] Evidence was given in proceedings by Constable AB, Inspector Dean Clinton and Superintendent Peter Lardner.

[31] Constable AB gave evidence as to the circumstances that led to him making the FWA applications. He explained that part-time work - regardless of the pattern of work - was not a financially feasible option for his family at this time. Constable AB said that his wife is the primary breadwinner in the family and financially they require her income to cope with the financial burdens on the family (of which it is not necessary to detail here). Due to the demands of her job Constable AB's wife is unable to work flexibly. Constable AB gave evidence that his wife's usual working days are Monday to Friday but that she works about 50 hours per week given the nature of her work.

[32] Constable AB said that his mother-in-law cares for his child on Monday and Tuesday afternoons. On Thursdays Constable AB drops his child at childcare and the child is picked up by his wife later in the day. The 2021 request would enable Constable AB to care for his child on Wednesdays and Fridays.

[33] Constable AB gave evidence that there are limits as to the caring that can be done by his mother-in-law given her work and other caring commitments.

[34] Constable AB also gave evidence that he had sought the roster put forward in the 2021 request so that the additional day off in his roster fell on a weekend (Saturday or Sunday) so that he, his wife and child could have some family time together.[7] In making this request Constable AB acknowledged that Other Rank officers working a standard 5 x 8 roster do not have a fixed three minimum days off on the weekend over a four week cycle.

[35] Constable AB agreed that he met with Acting Senior Sergeant Egan on 6 May 2021 who explored with him a range of options including part-time work, working a minimum number of night shifts, changing location to be able to work a 4 x 10 roster and flexibilities with his caring responsibilities. Constable AB agreed that he did not amend the 2021 request submitted on 22 April 2021 as a result of this conversation.

[36] Constable AB also agreed that he met with Inspector Clinton on 13 May 2021 who advised him that the 2021 request could not be accommodated although did tell Constable AB he could support Wednesday and Friday as permanent rest days and later start times on Tuesday and Thursday under a 5 x 8 roster. Constable AB said that this proposal would not allow him to spend any time with his wife and child together and this is why he wants the third rest day each week.[8]

[37] Inspector Dean Clinton is the Hume Local Area Commander and has held that role since October 2020. He is responsible for the three police stations falling within the Hume Local Government Area being those located at Broadmeadows (where Constable AB is based), Sunbury and Craigieburn. Hume is part of North-West Metro Division 4. Superintendent Peter Lardner is responsible for North-West Division 4.

[38] Inspector Clinton advised that Victoria Police at the State and regional level can dictate where divisional resources are to be allocated. He said that when there is a State level operation in place, State level management will determine the number and type of resources a Division is required to send to the operation. Likewise when a taskforce is established at a regional level to respond to a regional matter (e.g. a major protest) resources are allocated from the North-West Metro Division 4 for such a purpose. He said that, more generally, the Superintendent has authority to allocate resources across the Division.

[39] Inspector Clinton said that some resources are planned on a long-term basis whilst others are made in response to matters arising with little or no prior notice. Given this, it is possible on any given day for members on general duties to be allocated to other divisional operations, depending on the operating environment.

[40] Inspector Clinton said that the Hume Local Area experiences a 'high level' of crime and that it is not uncommon for each member to have a number of active investigations, active warrants and active briefs. As a result, members require one uninterrupted 'investigative shift' (High Volume Tasking Team - HVTT) per week to allow time to attend court, take statements, prepare briefs of evidence, meet with and provide updates to witnesses and victims, follow up on investigations after attending jobs and completing paperwork. Inspector Clinton said existing demands limit this to each fortnight but, due to high workloads, members on these shifts are constantly redirected to other tasks. In the Inspector's view it is important for a particular member involved in a live incident to complete the associated investigative work.

[41] Inspector Clinton said that he has the authority to make decisions in relation to requests for FWA although he generally reports such requests to the Superintendent level and provides advice to the Superintendent in relation to such requests. He said that Victoria Police needs to be 'rigorous' in assessing such requests both at the initial request stage and when they come up for review.

[42] Inspector Clinton gave evidence as to the current roster at Broadmeadows police station. He said that no Other Rank officers are currently available to fill the two additional shifts [per fortnight] that would need to be filled if Constable AB's 2021 request was granted, without moving those other officers away from other tasks.

[43] Inspector Clinton said he provided advice to Superintendent Lardner in relation to a response to the 2021 request made by Constable AB on 22 April 2021. He said that he first became aware of the 2021 request when Acting Senior Sergeant Mark Egan submitted the request to him for approval. Based on a discussion he had with Acting Senior Sergeant Egan he understood that Acting Senior Sergeant Egan had 'formed a preliminary view' that Constable AB's 2021 request could be accommodated. However, the Inspector did not consider that, in forming such a view, sufficient weight had been given to the 'broader resourcing challenges facing North West Division'.

[44] Inspector Clinton said he formed the view that Constable AB's 2021 request for a FWA could not be supported. He said that, while some components of the application had been supported in the previous 12 months, circumstances had since changed which had impacted on available resources in North-West Metro Division 4, including:

The Hume Local Area providing increased numbers to support Operation Tidewatch from zero members per day as at 30 June 2020 to 24 members per day as at 13 May 2021 although North-West Metro Division 4 had often been unable to meet the resourcing commitment sought by State level management.

An increase in the number of public demonstrations. In December 2020 there were 5 protests and demonstrations resulting in requests for resources from North-West Metro Division 4 whereas in March 2021 there were 17 demonstrations triggering the same request.

Broadmeadows supporting the Hume Local Area and North-West Metro Division 4 stations with members to meet shortfalls to ensure core tasks are fulfilled within the Division.

The Hume Local Area no longer able to support external secondments outside North-West Metro Division 4 that are not core secondments.

Since March/April 2021 the Hume Local Area being unable to support Operation Sandstone.

The Hume Local Area being unable to roster HVTT 'at an appropriate level' with members usually redirected to other tasks.

The Hume Local Area no longer able to 'consistently contribute' to Operation Impactor. Across 2020 it was resourced by 1 general duties Sergeant and 4 Other Rank officers from Hume, Moonee Valley or Moreland on rotation, or according to which Police Service Area had the resources, 7 days a week.

The Hume Local Area seeing increases in community and Council complaints, vehicle crime and an increase in offences against a person.

[45] On 6 May 2021 Inspector Clinton asked Acting Senior Sergeant Egan to ask Constable AB if he was willing to work at an alternative location within North-West Metro Division 4. If Constable AB was agreeable to this Inspector Clinton said he was willing to ask the Inspectors responsible for Moonee Valley and Moreland if they could accommodate the request. Constable AB indicated that he would be prepared to move work locations within the Division and reiterated that he had no alternative care arrangements for his child.

[46] On 10 May 2021 Inspector Clinton requested Acting Senor Sergeant Pickles to 'update the...Flex Work Letter from the Supt to include a bit more information about what has changed in the environments since [Constable AB] has first put in his flexible working request. The changes should be easy to articulate as the resourcing environment has changed significantly'.[9]

[47] On 13 May 2021 Inspector Clinton and Acting Senior Sergeant Pickles met with Constable AB and provided him with a response to his 2021 request. Inspector Clinton says that in that meeting he told Constable AB that his request was refused and outlined the reasons for that decision. Inspector Clinton explored with Constable AB if there were any alternatives. He said that Constable AB said he would seek advice and he encouraged him to do so. Inspector Clinton also indicated to Constable AB that he could support the fixed rest days and late start times as long as these aligned with core shift start times.

[48] Inspector Clinton said that he remains of the view that Constable AB's 2021 request could not be accommodated at the time the 2021 request was considered.

[49] Superintendent Peter Lardner is the Divisional Commander for North-West Metro Division 4. He commenced in that role in April 2020.

[50] On 13 May 2021 Superintendent Lardner wrote to Constable AB and advised him that his 2021 request for a FWA was refused. He said he made this decision after giving consideration to Constable AB's childcare requirements and the operational requirements within North-West Metro Division 4. Superintendent Lardner said he had sympathy for Constable AB's desire to have family time but that, along with his childcare needs, when balanced against the genuine business needs of Victoria Police and resourcing issues meant the request could not be accommodated.

[51] On the matter of resourcing, Superintendent Lardner gave evidence that:

There is no definitive determinant of how many police are necessary at any given time.

Victoria Police has a Staff Allocation Model (SAM) in an attempt to allocate appropriate levels of resources to police divisions. The SAM allocates on an assumption of 8 hour shifts.

While there are a 'myriad inputs' into the SAM, a capacity to meet the policing demands of COVID-19 is not one of these. The SAM does not take into account the staff required to close state borders or door knock homes to ensure compliance with self-isolation.

Below the divisional level a greater level of management judgement is required to allocate resources to specific work units.

Within work units local managers make decisions on a daily basis about how resources are allocated to specific tasks and time spent on any specific task is a matter for a local supervisor or attending member.

The allocation of resources to any task comes at the 'opportunity cost' of resourcing committed to another task.

He and his managers draw on their 'experience and judgement to apply the art of balancing the myriad of competing tensions' of service demands and the wellbeing needs of members.

[52] Superintendent Lardner gave evidence that Victoria Police is currently experiencing the most 'exceptional circumstance' he has seen in 35 years of policing. Since he moved into the role Superintendent Lardner has, almost every week, been required to re-allocate resources in order to meet COVID-19 and non-COVID-19 related policing activities. During COVID-19 he said he has personally been allocated to performing other duties.

[53] Superintendent Lardner said that, as at 22 July 2021, 62 members were deployed from North-West Metro Division 4 for Victoria Police's COVID-19 related response. While doing so the members are directed away from policing activities in North-West Metro Division 4.

[54] Superintendent Lardner said that he considers the response of Victoria Police to COVID-19 to be the most important priority for the State. If resources are requested they are provided and the impact on North-West Metro Division 4 is then managed. This comes at a cost to North-West Metro Division 4's ability to resource its 'business as usual' operations. He said the impact is further exacerbated by North-West Metro Division 4's current vacancy rate. Current vacancies are about 44 'with limited relief foreseeable for the medium term'. Pressures in North-West Metro Division 4 have resulted in either the suspension of operations or depletion of capacity.[10]

[55] Superintendent Lardner said that he does not normally become involved in discussions in relation to requests for flexible work arrangements until after local discussions have taken place with the member making the request. He said that once that has occurred the matter is then escalated to him with a recommendation. In assessing a request for a FWA he takes into account the matters set out in the draft letter for his approval in order to 'satisfy [himself] that there is a valid rationale for the decision recommended'. He also draws on his 'personal understanding of the circumstances of the individual, the current operating environment, the likely emerging operating environment the resourcing position of the work unit and the Division, and the likely impact an approval would have on the capacity to provide an appropriate policing service to the community'.[11] Superintendent Lardner also said that he assesses each application on its merits and does not apply a common principal across all applications.

[56] Superintendent Lardner said that he needed flexibility to be able to roster Other Rank officers when he receives last minute requests for resources and he needs flexibility to manage the dynamic environment in which Victoria Police operates.

[57] On reviewing the 2021 request of Constable AB, Superintendent Lardner considered he could accommodate the two days off per week required by Constable AB to look after his child and the two late starts per week. However, he did not consider he could accommodate set weekend days off because policing is a 24 hour per day, 7 days per week operation with no difference between weekend and weekdays or the 10 hour shift because of the loss of two shifts per fortnight.

[58] Superintendent Lardner said that the circumstances that existed at the time Constable AB's 2020 FWA was approved are materially different to those that existed when he considered the 2021 request.

[59] Superintendent Lardner said that the reasons he refused the 2021 request of Constable AB were:

Four 10 hour shifts per week and 3 rest days would reduce Victoria Police's operational capacity to maintain service delivery. Every time a shift is lost there is a requirement to take another member away from some other tasks. The loss of two shifts per fortnight would contribute to a reduced capacity to facilitate the number of uniformed resources being supplied to other specialist work units and tasking teams.

It would reduce North-West Metro Division 4's capacity to meet operational service demands including for Operation Tidewatch, Operation Sentinel and COVID-19 related protests. The loss of 2 shifts per fortnight impacts on both the total resourcing available and the loss of flexibility in being able to manipulate rosters and move staff around.

An increase in the number of demonstrations where police are required. The number of police required has increased substantially to mitigate COVID-19 transmission risk. In the period December 2020 - 30 June 2021 there have been 44 protests and demonstrations where Other Rank officers from North-West Metro Division 4 have been requested. During this period 962 Other Rank officers have been requested and 923 have been supplied.

There are currently approximately 44 vacancies in North-West Metro Division 4 which exacerbates all of the issues outlined above.

[60] I do not doubt the evidence that has been put before me. Each witness was open and honest as to the grounds on which each took the action they did. The determination of this matter will not be down to an assessment of the credibility or honesty of the witnesses but rather a weighing up of the evidence given.

WHAT ARE THE RIGHTS AND OBLLIGATIONS UNDER CLAUSE 14?

[61] Clause 14 of the 2019 Agreement is set out above. There is some dispute between the parties as to the rights and obligations of the parties to the dispute pursuant to that clause. The dispute also goes to the purpose and/or requirements of the Victoria Police Manual (VPM) on Workplace flexibility.

[62] The principles relevant to the interpretation of an Agreement are well articulated in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited (Berri)[12]. I do not intend to repeat them here. I have, however, considered them in my findings below.

[63] The application of these principles in relation to matters of ambiguity was considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA[13] which said:

[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.

[64] In coming to the following conclusions I should indicate that I do not consider there to be any ambiguity or uncertainty in the provisions of clause 14 of the 2019 Agreement.

[65] Firstly, there is nothing in the 2019 Agreement that suggests there is any limitation as to the type of flexibility that may be requested by an employee or granted by the employer. Clause 14 of the 2019 Agreement does not define 'flexible work' and other clauses of the 2019 Agreement do not state that they are immune from or cannot be varied by a FWA. The language of clause 14 is that an employee 'may request a change in working arrangements...'. Subject to any express prohibition in any other clause which deals with 'working arrangements' there is no warrant to limit the types of flexibilities that may be sought.

[66] As to the specific operation of Part 5 of the 2019 Agreement, it is apparent that the ordinary hours of work for Other Rank officers is 8 hours per day worked continuously (clause 30.1). This however can be varied, for example, by a part-time work agreement, which may reduce daily hours at the request of the employee (clauses 33.2 and 33.4) suggesting the immutable nature of an 8 hour day as posited by Victoria Police does not exist. If it was that the 8 hour day could not be varied in any circumstances or in circumstances other than a part-time work arrangement it could be expected to be expressly stated. It is hard to imagine a more ubiquitous working arrangement than the number of hours to be worked in a day and the starting and finishing time for those hours. The submissions made by Victoria Police on this point are without merit.

[67] Second as is relevant to this case, the qualification for making a request is that the employee must be the parent who has responsibility for the care of a child who is of school age or under. The application, clearly (by virtue of the closing sentence in clause 14.2 of the 2019 Agreement) must relate to that qualification.

[68] Third the employer must respond to the request within 21 days of receipt of such a request but before making such a response the employer must discuss the request with the employee to try to reach agreement (clauses 14.6 and 14.7). On its face, this discussion does not have to be with the ultimate decision-maker. This discussion is, however, a discussion of substance. The 2019 Agreement is clear that it should be directed at trying to reach agreement. This discussion directed to reaching agreement is required to consider the needs of the employee, the effect on the employee of not reaching agreement, available alternatives and any reasonable grounds for refusing the request. As the terms clearly indicate, at the time of the discussion the employer must have reached some preliminary view as to the grounds for refusal of the request (if it is to be refused in full or in part) with this 'on the table' in the discussion. The discussion encompasses both the needs of the employer and of the employee. This discussion cannot occur after the final decision is made to refuse the request. That would make a nonsense of the requirement to try to reach agreement.

[69] Fourth, the only basis on which the employer may refuse the request is 'reasonable business grounds'. Such grounds are not limited to those in clause 14.10(a)-(e) and those grounds do not need to be restricted to the effect of the change on the employee's direct workplace (in this case Broadmeadows police station).

[70] The decision in Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council[14] (Brimbank) (relied on by the Police Association) in which Vice President Lawler found that an 'alternative flexible working arrangements... should be accepted unless they could be refused because of the adverse effects in the workplace'[15] must be considered in the context of the flexible working arrangements in the agreement that applied at Brimbank City Council. The agreement in that case provided, at clause 20.4, that '[a]ll requests for a flexible work arrangement may only be refused on reasonable grounds related to the effect on the workplace' [underlining added]. The words 'related to the effect on the workplace' are not found in the 2019 Agreement before me, nor are they found in s.65 of the FW Act. Reliance on Brimbank to support a conclusion that the reasons for refusal must relate (impliedly directly to) the workplace (narrowly defined) are therefore misplaced.

[71] Further, to the extent the Police Association relies on the Explanatory Memorandum to the Fair Work Bill 2008 to support its contention, the explanatory memorandum says:

267. The Bill does not identify what may, or may not, comprise reasonable business grounds for the refusal of a request. Rather, the reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made. Reasonable business grounds may include, for example:

the effect on the workplace and the employer's business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;

the inability to organise work among existing staff; and

the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee's request.

[72] As is apparent from the underlined words above, the reference to the effect (of a request) 'on the workplace' is no more than one example of what may provide reasonable business grounds, not that the direct effect on the workplace is necessary to establish a reasonable business ground. In any event the paragraph referred to is the effect on the workplace and the employer's business. Again suggesting a narrow approach as posited by the Police Association cannot be implied from the Explanatory Memorandum.

[73] The reasonable business grounds proffered for refusal of a request must be considered in the context of the work performed or required to be performed by the applicant for the flexibility. Such contextualisation provides a basis for review of the reasonableness of the business grounds given by an employer for denying the request.

[74] Fifth, there is nothing to prevent a review of an existing FWA. It is not apparent from clause 14 of the 2019 Agreement that anything can be taken from a review being called at any particular time. Ultimately, it will be the existence of reasonable business grounds for refusal at the time of refusal that will remain the relevant consideration.

[75] In determining the correct approach to the dispute before me (which, of course, must turn on its own facts) I have considered the decision of Commissioner Wilson in The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police[16] (Emery). I consider that the principals set out in that decision provide appropriate assistance and guidance in determining the matter before me, that is:

1. Consideration must be given to an assessment of whether the request made is actually a request for a flexible working arrangement;

2. The employer is obliged to give a written response to the request, within 21 days of it being made;

3. The legislation requires that an employer may refuse a request only on reasonable business grounds. There needs to be an objective basis for those grounds.

4. The "refusal" of a request is when it is communicated to the applicant that the request is not agreed, and the reasonable business grounds upon which the refusal rests are those communicated at the time;

5. The intent of the legislation, as well as the intent of a flexible working arrangement clause, is to provide for flexible working arrangements.

6. There is a need for managers to weigh the personal circumstances relied upon by the employee against the extent of cost and impact on the business of allowing the request;

7. Since almost all requests will result in some cost from the proposed arrangement, it will generally be insufficient for an employer to simply point at cost as being a reason for refusal;

8. It follows from the foregoing that it will be necessary for the employer to point to some cost over and above what may be regarded as inevitable small adverse impacts.[17]

[76] Victoria Police takes no issue with these principles save for three over-arching matters. These are:

(i) the intent of the legislation and of the flexible working clause of the 2019 Agreement is to the balance the competing interest of the employee (in securing an arrangement catering to their needs) and those of the employer (in managing the interests of their business);

(ii) weighing of the personal circumstances of the employee against those of the business appears to be based on an observation in Brimbank. The particular circumstances of that case should add caution to any transposition of principals to a general application;

(iii) any 'weighing' of circumstances cannot result in the Commission standing in the shoes of the employer. The Commission's role is to determine if the decision of Victoria Police, in this case, to refuse the request, was objectively reasonable. Relevant is that 'reasonable' leaves room for judgement and reasonable minds may arrive at different decisions, yet still be acting reasonably.[18]

[77] The FW Act creates a right of employees to request a FWA but within a constrained set of circumstances in s.65(1A) of the FW Act and clause 14.2 of the 2019 Agreement. The basis upon which an employer may exercise its right to refuse such a request is limited to 'reasonable business grounds'. To the extent Victoria Police suggest any narrower approach than this, I do not accept that approach. To the extent that there is any suggestion of an unfettered right to flexible working arrangements, it is clear there is not.

[78] I accept that the circumstances in Brimbank are different to those in the current matter. The provisions of the relevant agreement in Brimbank vary from those in the 2019 Agreement before me. The matter before me must be considered in the context of s.65 of the FW Act and clause 14 of the 2019 Agreement. Clause 14.7 of the 2019 Agreement requires discussion between the employer and employee and requires a consideration of the needs of the employee, the consequences of not granting the request on the employee, alternatives and any reasonable grounds for refusing the request. It is difficult to see how this does not require some weighing up as set out in Emery.

[79] The Commission's role in this matter is to determine if the business grounds relied on by Victoria Police in refusing the 2021 request of Constable AB for a flexible working arrangement are, in all of the circumstances, objectively reasonable (in addition to determining if the other requirements of the clause have been met). It is not the Commission's role to determine the request should be granted. Should the Commission find that the grounds for refusal have not been made out it would be expected that the employer, in such circumstances, would immediately review its decision. I would observe that it would be improper in such a review to bring into play other business grounds that had come to the fore since the refusal time subject to arbitration. Such an approach would lead to a dispute never finalised.

Relevance of the Victoria Police Manual on Workplace flexibility

[80] The Police Association says that the VPM is relevant and that Victoria Police is 'obligated to comply' with it.[19] The Police Association also says that the Commission should have regard 'to the obligations imposed on sworn employees and managers of the Victoria Police Force in complying with...the VPM on workplace flexibility.'

[81] Victoria Police accepts that the Police Association does not contend (nor could it contend) that the VPM is incorporated into the 2019 Agreement. It submits, however that, whatever status it might have under the Victoria Police Act 2013 (Vic) is irrelevant to the proper construction and application of s.65 of the FW Act. To the extent the VPM may provide guidance as to how Victoria Police considers such applications I consider it of relevance but only to the extent that it does not conflict with clause 14 of the 2019 Agreement or s.65 of the FW Act. However, the VPM cannot be taken to override in any sense the clear intention of the 2019 Agreement.

[82] In correspondence to Constable AB on 13 May 2021 Superintendent Lardner said, in rejecting the 2021 request:

...I am unable to accommodate your request to vary your flexible work arrangement as it stands. This is due to significant resourcing issues affecting Broadmeadows Police Station's ability to meet minimum service delivery and operational requirements.

...By endorsing your request to renew and vary your flexible working arrangement, Broadmeadows Police Station will experience service delivery gaps that will impact the service to the community...

[83] There follows a non-exhaustive list of the 'resourcing issues'. These are set out above at paragraph [28] and are not repeated here.

[84] Victoria Police says that the operative reason for the refusal of the 2021 request is the 'significant resourcing issues' and the list of 'delivery gaps' is indicative of this reason.

[85] I would observe that this is the only issue listed in the refusal given to Constable AB in the letter of 13 May 2021 that can be objectively assessed by the Commission. As is agreed, that is the reasons given at the time of the refusal of the 2021 request constitute the reasons for refusal. There cannot be further 'indicative' reasons not spelt out.

[86] It is necessary to consider each of these indicative matters. In doing so it would be easy to make some comparative assessment of the grounds at the time the decision was made compared to how they might have effected such a request in the 12 months prior to the decision or in the period since the decision, but to do so would be wrong. The assessment to be made is not a comparative assessment but whether the grounds stand the test as the circumstances were at the time the decision to refuse the 2021 request was made.

[87] I note that Victoria Police did not seek to change the FWA of Constable AB within the 12 month period prior to the 2021 request. Nor did it ask him to 'work around' his FWA but this cannot be now used to support an argument that Victoria Police does not or cannot have reasonable business grounds for refusing the 2021 request at the time that decision was made.

Was the request a request for flexible working arrangements?

[88] Victoria Police submits that there were four elements to the flexibility sought by Constable AB:

(iii) the third rest day alternating between Saturday and Sunday on 3 of the 4 weekends; and

(iv) each of the above occurring within a 4 x 10 roster.

[89] Clause 14.2 of the 2019 Agreement provides that an employee who is the parent of a school age or younger child may request a change in working arrangements relating to those circumstances. This is the circumstance relied on by Constable AB. That he is the parent of such a child is not at issue.

[90] It is apparent that the flexibility must relate to the particular circumstance relied upon. In this case each aspect of the flexibility sought can, and should, be considered separately to determine if it does relate to the circumstance.

[91] I do not agree that the 'need for the proposed change in working arrangements must be caused by' the relevant circumstance as put by Victoria Police. This, I think, places too strong a link between the two in circumstances where the words used in the 2019 Agreement are 'relating to' and not 'because of".[20] It seems to me that the causal link, as Victoria Police would suggest is necessary, is much stronger than a relational link which is all that is required by clause 14 of the 2019 Agreement. That is, there must be some relationship between the flexibility sought and the circumstances (in this case being the parent of the child). I do note that, while s.65 of the FW Act uses the term 'because,' the 2019 Agreement uses the term 'relating to'. The wording in the 2019 Agreement is, in this respect, different from that of the FW Act but not to the detriment of the NES such that the 2019 Agreement should prevail. In any event, in this case, I do not consider anything turns on the difference in words although I would observe that it is unfortunate such variations were not highlighted and fully explained by either party at the hearing of the matter.

[92] I am satisfied that there is the requisite relationship between the request to have Wednesdays and Fridays as rest days and being the parent with responsibility for the care of a child. The child is not otherwise in care on those days and there is no other option for care. Parenting clearly extends to the provision of care.

[93] I am also satisfied that there is a relationship between the request to have an early start Monday and a late start on Tuesdays and Thursdays and being the parent of a child. It is necessary to ensure the adequate care of the child and to fit with other caring arrangements.

[94] The request for a third rest day (i.e. 4 x 10 shift pattern) has a weaker nexus to caring for a child. However, to the extent that its purpose is to allow Constable AB to spend time with his child I am satisfied that it does have the requisite relationship. It is apparent from the evidence that Constable AB seeks, by the third rest day, to provide further nurturing of his child, his preference being that this occur in conjunction with the child's mother. It seems to me that nurturing is part of the provision of care and should not be dismissed out of hand. I accept that such a day may not be necessary, but it does relate to the care of the child considered important by Constable AB in the context of a family unit. I am however not convinced that the requirement that this third rest day, on 3 out of 4 occasions, always occurs on a weekend has the requisite relationship although it should not be that it would never occur on a weekend. Constable AB should not be disadvantaged compared to other officers in terms of the likelihood of rest days occurring on a weekend. If I am wrong and it is found that the third rest day occurring on a weekend does, in this case, relate to the care of the child, again I consider that relationship tenuous. In this case it is clearly not necessary as Constable AB's wife is not required to attend at her workplace on a weekend (although she may do some work from home).

[95] In reaching my conclusion I am mindful of the submissions of the Police Association in relation to Australia's obligation under the relevant Convention of the Rights of the Child (Convention) but do not consider that this assists in resolving the matter before me.

[96] It was also put by the Police Association, as I understand it, that it was the intention of the Parliament in making the FW Act, that a request for an FWA be assessed taking into account the provisions of relevant state law (see s.66 of the FW Act). They say that any request therefore must be assessed against the provisions of s.19 of the Equal Opportunity Act 2010 (Vic) (EO Act). Paragraph 272 of the Explanatory Memorandum Fair Work Bill 2008 is relied on to this extent. It states, of what is now s.66 of the FW Act:

272. The intention of clause 66 is to ensure the application to national system employers and their employees of more beneficial State or Territory laws that confer a right to request flexible work arrangements and deal with discrimination in relation to parental or carer responsibilities. For example, this clause is intended to enable the operation of provisions in the Equal Opportunity Act 1995 (Vic) that oblige an employer in Victoria to accommodate an employee's responsibilities as a parent or carer and that prescribe remedies if an employer breaches those obligations.

[97] The Explanatory Memorandum makes it clear that it is not that the provisions of the FW Act that are intended to replicate the EO Act or that the provisions of the EO Act are to be read as if they were part of the FW Act. Rather, it is intended that an employee retains rights under the EO Act despite the FW Act.

[98] I have considered each of the four flexibilities sought by Constable AB as individual requests and the reasons given for refusal below. This provides for transparent decision-making of the 2021 request.

[99] I am satisfied that Victoria Police provided its written response within 21 days of the 2021 request being made.

[100] Clause 14.7 of the 2019 Agreement requires that, prior to providing a response the employer should meet with the employee and 'genuinely try to reach agreement' on a change to working arrangements. In doing so regard should be had to:

the needs of the employee arising from the circumstances;

the consequences for the employee if change is not made;

[101] Constable AB had a conversation with Acting Senior Sergeant Egan on 6 May 2021. At this meeting a range of options such as part-time work or changing locations within the Division were explored in the context of Constable AB's caring responsibilities. Constable AB said he had no further discussions with anyone about his personal circumstances.[21] During this conversation Constable AB was informed that Inspector Clinton did not like 10-hour shifts.[22] Inspector Clinton concurred that on 6 May 2021 he had requested Acting Senior Sergeant Egan to explore other options with Constable AB.

[102] Constable AB said he met with Inspector Clinton and Acting Senior Sergeant Pickles on 13 May 2021 where he was advised his 2021 request had been 'rejected' and was provided with the rejection letter signed by Superintendent Lardner.[23] He was told that fixed rest days and the late starts could be accommodated. Inspector Clinton agreed that he did not otherwise meet with Constable AB or discuss the impact of not granting the request with Constable AB.[24] Inspector Clinton made clear that he leaves such discussions to the Senior Sergeants.

[103] Superintendent Lardner did not meet with Constable AB.

[104] The evidence before me suggests that, while a meeting was held with Constable AB prior to the decision being made, this was conducted by a Senior Sergeant, and went to other available options to the 2021 request and advice that Inspector Clinton 'did not like 10-hour shifts' but did not cover the reasonable business grounds for refusal. There does not appear to have been an invitation to or opportunity for Constable AB to explain his needs and the consequences of a refusal of some or all of the request. While it is not necessary that the meeting required by clause 14.7 of the 2019 Agreement be with the decision-maker, the person holding such a meeting needs to have a sound knowledge of the basis for the message being delivered. In this case the Senior Sergeant does not appear to have been told any more than to explore options with Constable AB. This does not meet the requirements of clause 14.7 of the 2019 Agreement.

[105] If the purpose of clause 14.7 of the 2019 Agreement is to ensure all of the relevant information is on the table to assist in sound decision-making, this did not occur. I do acknowledge that Inspector Clinton did advise Constable AB to seek advice and that he expected Constable AB to return with some alternatives but this was after the refusal of the 2021 request was formally given. As I said above the evident purpose of such a meeting is to ensure the applicant for a FWA has an opportunity to influence the decision and that the decision maker has all the relevant information prior to the final decision being made. It is not apparent this occurred in this case.

[106] While the meeting as required by clause 14.7 of the 2019 Agreement did not occur I do not consider for the reasons below, had it occurred, it would have made a substantial impact on the decision of Victoria Police and its business grounds for refusing the request of Constable AB.

[107] I now turn to consider if the reasons for refusal of the decision amount to reasonable business grounds.

[108] I accept, in this analysis, that Constable AB is based at Broadmeadows Police Station in the Hume Local Area (which covers Broadmeadows, Sunbury and Craigieburn). Inspector Clinton is the Local Area Commander for Hume. The Hume Local Area along with the Moonee Valley Local Area and Moreland Local Area (as I understand it) make up North-West Metro Division 4 for which Superintendent Lardner is the Divisional Commander.[25] I would observe that the reasons for rejecting Constable AB's 2021 request move between Station, Local Area and Divisional level and the various demands for resourcing within each of those. I note this not as a criticism but a recognition that these are relevant areas of work for Constable AB and the operation of that part of the 'business' is relevant to my consideration.

[109] I also accept that there are a number of operations that impact on resourcing.

[110] The evidence in relation to this issue is scant. The refusal letter of 13 May 2021 says that Broadmeadows Police Station has 7 vacancies and 22 members seconded or upgraded within the Division. In his evidence Inspector Clinton said that there were 10 vacancies at Broadmeadows[26] with approximately 28 vacancies across Hume.[27] Superintendent Lardner said there were 44 vacancies across North-West Metro Division 4. Inspector Clinton described the number of vacancies as 'unprecedented' in his mind. When asked of the effect of the vacancies Inspector Clinton said:

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police [2021] FWC 5983

At a glance

Court

Decision date

Source

Judgment (258 paragraphs)

The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police [2021] FWC 5983 (19 October 2021)

Parties

Legislation Cited (5)

Cases Cited (1)