s.739 - Dispute resolution

The Police Federation of Australia (Victoria Police Branch)

Chief Commissioner of Police T/A Victoria Police

Application to deal with a dispute arising under an enterprise agreement.

• [1] Leading Senior Constable Melissa Farley is employed by Victoria Police as a prosecutor. She has held this role, attached to the Melbourne Prosecutions Unit, for more than eight years although she has been employed by Victoria Police since 2006.

• [2] In October 2022, LSC Farley commenced parental leave following the birth of her first child. Following her return to work, LSC Farley requested a flexible working arrangement to work three shifts per week, Monday to Wednesday, consisting of 9-hour shifts with Mondays to be worked from home. Victoria Police approved LSC Farley's request to work three 9-hour shifts per week as requested. However, Victoria Police refused LSC Farley's request to work from home on Mondays. LSC Farley commenced working in according with this flexible working arrangement on 17 June 2024.

• [3] Five weeks later, LSC Farley submitted a request to vary her flexible working arrangement to work from home each Monday (Variation Request). On 2 August 2024, Victoria Police refused the Variation Request.

• [4] The dispute before the Commission arises under the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (Agreement) and relates to the decision by Victoria Police to refuse the Variation Request. The application has been made on LSC Farley's behalf by The Police Federation of Australia (Victoria Police Branch).

• [5] The dispute before the Commission has a narrow focus. It came before the Commission as a dispute concerning compliance with clause 14 of the Agreement titled Right to request flexible working arrangements. It was referred to the Commission pursuant to clause 10 Dispute Resolution of the Agreement.

• [6] The dispute notification seeks a determination that Victoria Police did not provide reasonable business grounds to reject LSC Farley's request to work from home on Mondays; and consequently, that LSC Farley be granted a flexible working arrangement to work from home on Monday.[1]

• [7] The pre-requisites to the Commission's involvement having been followed, I am satisfied that the Commission is empowered to resolve the dispute in accordance with clause 10 of the Agreement and s 739 of the Act. The parties agreed that the Commission should determine the following question in resolution of the application:

Were the grounds relied upon by the Employer to refuse the flexible working arrangement application of Leading Senior Constable Melissa Farley on 2 August 2024 'reasonable business grounds' pursuant to clause 14.9 of the Victoria Police Enterprise Agreement 2019?

• [8] Clause 14 of the 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

(c) has a disability; or

(d) is 55 years of age or older; 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.

• [9] LSC Farley's role as a prosecutor sits in the Courts and Prosecutions Services Division (CPSD) of Victoria Police, which is part of Victoria Police's Legal Services Division.[2] LSC Farley's role is within the Prosecutions Branch of the CPSD. The Prosecutions Branch is divided into five geographical units[3] and LSC Farley works in the Melbourne Prosecutions Unit.[4] Hours of work in the Prosecutions Branch are Monday to Friday 8:00am to 4:00pm subject to any approved flexible working arrangements.[5]

• [10] The primary function of the role of police prosecutor is to prosecute matters in the courts on behalf of Victoria Police.[6] The following circumstances and substantial duties of LSC Farley's position are not in dispute:

• (1) LSC Farley is a well-trained general prosecutor.[7]

• (2) A part of LSC Farley's role is to appear before the Courts.[8]

• (3) A majority of LSC Farley's shifts are in-court shifts, and she is required to be physically present in court to perform them.[9]

• (4) The in-court duties take priority for prosecutors and where additional resources are required to perform in-court work, prosecutors who were allocated out of court duties will be reallocated to in-court duties.[10]

• (5) LSC Farley undertakes a range of appearance work that requires physical attendance in a court.[11] This includes mentions, contest mentions, special mentions, family violence civil matters (including with associated criminal mentions), pleas of guilty and not guilty, and consolidated pleas of guilty with multiple matters.[12]

• (6) The matters before the Melbourne Magistrates Court change on a daily basis.[13]

• (7) The manner in which prosecutors are rostered depends on the type of work required in the court on a given day, and on the number of prosecutors available to perform work in the Melbourne Prosecutions Unit on any given day.[14]

• (8) A prosecutor's work is responsive to the court's schedule and there is no pattern to the types of shifts a prosecutor will be rostered.[15]

• (9) Generally, a prosecutor is unable to appear remotely in a hearing where the matter is otherwise being heard in person at the court. Therefore, prosecutors cannot generally choose to work an in-court shift remotely.[16]

• (10) A "preparation" shift is one that a prosecutor will be allocated to complement an in-court shift in which they will undertake a contest mention or a contested hearing.[17]

• (11) A "write-off" shift will be allocated to a prosecutor to undertake follow-up and notifications from a contest mention hearing and some family violence shifts.[18]

• (12) A preparation shift and a write-off shift are both incidental to an in-court shift performed by the prosecutor such that a prosecutor would only be rostered for this kind of shift if they have themselves undertaken the associated in-court work.[19]

• (13) To perform summary case conferencing (SCC), prosecutors need a complete copy of the file for each relevant matter. At the time of the Variation Request, a complete file was produced in hard copy only. In order to complete SCC work from home on a Monday, LSC Farley would have needed to take home on a Wednesday (being her last paid work day for the week) the hard copy files for each relevant case. In circumstances where the allocated SCC can change between Wednesday and Monday it would have been extremely difficult if not impossible to ensure the files for all required SCCs were taken home.[20]

• [11] LSC Farley's first flexible working arrangement request provides context for the Variation Request. Accordingly, I commence by summarising the first request LSC Farley made on 29 April 2024, following her return to work upon the conclusion of parental leave.[21] LSC Farley sought to work part-time hours (three days per week, Monday to Wednesday); to work 9-hour shifts on each of those three days, and to work from home on Mondays. The application was made on the basis that she is a parent of a child of school age or under (clause 14.2(a) of the Agreement).[22]

• [12] There were various exchanges,[23] including a meeting on 24 May 2024 to discuss the request. Following this meeting, Superintendent Handley sent LSC Farley an email which said, amongst other things, that:[24]

(a) Victoria Police understood that the application, particularly insofar as it concerned working from home on Monday, was to allow sufficient time to drop off and pick up LSC Farley's child from childcare on Mondays.

(b) In Victoria Police's assessment of the application, consideration had been given to the following matters:

• The Magistrates' Court Victoria sets the court listing statewide and Victoria Police prosecutors are required to attend and prosecute in courts with listings, there is not the option of prosecutors not attending to prosecute due to reduced staffing availability. A regular high rate of Unplanned Leave on Mondays at Melbourne Prosecutions Unit also adds to the requirement regular change to duties at short notice to ensure minimum service delivery is provided to court.

• The current vacancy rate at the Prosecutions Branch is 9% and rising daily, with the inability to recruit any new police prosecutors until such time that the Legal Services Department reaches 10% vacancy rate (the wider department is at 5% vacant as of 24/05/2024).

• The Prosecutions Branch currently has only 81% of funded FTE in the workplace (due to a range of long term leave such as WorkCover (currently 31 employees in the Prosecutions Branch) and parental leave) and 67% of baseline service level prosecutions profile in the workplace.

• There are currently 4 prosecutors relievers deployed statewide as well as 5 prosecutors deployed into assignment positions to assist those workplaces where staffing availability is as low as 50% of the FTE in the workplace. As Melbourne Prosecutions Unit is the biggest unit in the state most staff are drawn from Melbourne, with 6 of these reliever and assignment positions filled with employees from Melbourne. This has impacted on the workload of remaining staff.

• Melbourne Prosecutions has multiple employees with FWAs on Mondays that reduce the number of employees in the office. We have reviewed these FWAs and currently there is no ability to change them as an alternative."

• [13] The 24 May 2024 email concluded by stating that LSC Farley's request to work three 9-hour shifts per week Monday to Wednesday was approved. As to the request to work from home on Mondays, the email stated that having regard to the above considerations, Victoria Police's "preliminary response, not final response" was to meet with LSC Farley again on 29 May 2024 to discuss the possibility of alternative arrangements.

• [14] An agreement was not reached at the 29 May 2024 meeting and Victoria Police refused LSC Farley's request to work from home on Mondays. Its reasons were set out in writing through Victoria Police's "HR Assist" human resources management system on 29 May 2024.[25] This response was prepared by Superintended Handley and it stated:

"I write in response to your request (dated 29 May 2024) for a flexible work arrangement, in respect of your role as a leading senior constable attached to Melbourne Prosecutions Unit, Prosecutions Branch, Courts and Prosecutions Services Division, Legal Services Department.

Victoria Police supports flexible working arrangements wherever possible and considers each on its own merit. In addition to the flexibility options provided in the Victoria Police Manual, all sworn employees have a right to submit written requests for flexible working arrangements under clause 14 of the Victoria Police Enterprise Agreement 2015 (the Agreement). Clause 14 of the Agreement operates in accordance with the provisions of Section 65 of the Fair Work Act 2009 (Cth).

• A part time arrangement to work Monday, Tuesday and Wednesday only;

• Hours of work to be 9 hour shifts on each of these three days;

I understand that your application is to assist with sharing the care of your child with your husband, whom works in Ballarat and also currently has a flexible working arrangement application submitted to work 10 hour shifts on Monday, Thursdays and Friday and your working from home request is to allow you sufficient time to drop off and pick up your child from childcare care on Mondays.

I note that you have had consultation with Senior Sergeant Bronwyn Martin on 7 and 13 May and today met with me, Sergeant Bronwyn Martin and Inspector Jo Mueller to genuinely reach an agreeable and workable roster arrangement.

In assessment of this application, consideration has been given to:

• The Magistrates' Court Victoria sets the court listing statewide and Victoria Police prosecutors are required to attend and prosecute in courts with listings, there is not the option of prosecutors not attending to prosecute due to reduced staffing availability. A regular high rate of Unplanned Leave on Mondays at Melbourne Prosecutions Unit also adds to the requirement regular change to duties at short notice to ensure minimum service delivery is provided to court.

• The current vacancy rate at the Prosecutions Branch is 9% and rising daily, with the inability to recruit any new police prosecutors until such time that the Legal Services Department reaches 10% vacancy rate (the wider department is at 5% vacant as of 24/05/2024).

• The Prosecutions Branch currently has only 81% of funded FTE in the workplace (due to a range of long term leave such as WorkCover (currently 31 employees in the Prosecutions Branch) and parental leave) and 67% of baseline service level prosecutions profile in the workplace.

• There are currently 4 prosecutors relievers deployed statewide as well as 5 prosecutors deployed into assignment positions to assist those workplaces where staffing availability is as low as 50% of the FTE in the workplace. As Melbourne Prosecutions Unit is the biggest unit in the state most staff are drawn from Melbourne, with 6 of these reliever and assignment positions filled with employees from Melbourne. This has impacted on the workload of remaining staff.

• Melbourne Prosecutions has multiple employees with FWAs on Mondays that reduce the number of employees in the office. We have reviewed these FWAs and currently there is no ability to change them as an alternative.

I have taken into consideration your application and the requirements of your position as a police Prosecutor to provide police service delivery to the community.

Your application for the proposed flexible working arrangement is partly approved and this is reflected in an approved application for change of work hours on HRA and a separate FWA on HRA for 9 hour shifts. I have approved you working Monday, Tuesday and Wednesday with each shift being 9 hours in duration and can accommodate these shifts at either Melbourne Prosecutions Unit or Sunshine Prosecutions Unit.

As an alternative to your request to work from home on Mondays, I offered to explore alternate work locations within the Division (such as Sunshine Prosecutions Unit which is approximately 38-40km from the town you reside in). You declined this offer advising that "you are not willing to make that change at this time" and "currently use the train to travel to Melbourne and traveling to Sunshine Prosecutions would require you to use your car and there are costs with travel and maintenance."

I also offered an ad hoc working from home arrangement where you can request to work from home with prior arrangement with your unit manager, which you declined.

I also offered you the option of working a 7 hour shift on Monday with a 9 hour and a 10 hour shift on the other two days, or vice versa, which you declined.

I provided this information as a preliminary response on Friday 24 May when meeting with you to provide you opportunity to discuss with your family. We again met at 0900 hours on Wednesday 29 May 2024 for one final attempt to genuinely reach an agreeable and workable roster arrangement.

Unfortunately were unable to reach an agreement in relation to your request to WFH on Mondays.

There may be alternative options in respect of rostering or alternative work locations and wellbeing support to assist your personal circumstances. I again encourage you to please discuss this further with your manager."

• [15] Victoria Police's position is that, as the above correspondence identifies, before it declined the work from home request on Mondays, it proposed several alternative options for LSC Farley to consider,[26] which it says were not accepted by LSC Farley.[27] Victoria Police also says that it invited LSC Farley to propose any alternative options that may work for her.[28] There is no evidence before the Commission of LSC Farley formally requesting other options be considered.

• [16] LSC Farley commenced working in according with this flexible working arrangement on 17 June 2024.

• [17] Five weeks later, on 23 July 2024, LSC Farley submitted the Variation Request. By this application, LSC Farley sought to vary her recently made flexible working arrangement by again requesting to work from home on Mondays. The reason LSC Farley gave for the Variation Request in her application of 23 July 2024 was as follows (extracted without amendment):[29]

"1. This is an application for a Flexible Working Arrangement (FWA) as afforded to members under PART 1/14 of the Enterprise Bargaining Agreement 2019 (EBA2019).

1. My current working conditions as per my existing FWA can be summarised as follows:

2.4. Available Monday, Tuesday, and Wednesday for rostered shifts in the workplace.

1. I am requesting the following change to my FWA conditions:
   • 3.1. Mondays, rostered working from home shift.

1. The reason for this requested change is to better assist me in providing adequate childcare for my child.

1. On Mondays, my child is enrolled to attend a local childcare centre near our place of residence. Due to commuting times via public transport to and from work (approximately 90 minutes) there is considerable difficulty in meeting both my child's drop off time as well as attending work for my rostered start time.

1. Consequently, public transport is not reliable to arrive on time to pick up my child, which can alter at short notice.

1. My partner cannot be relied on to take on this responsibility as he commutes long distance to attend work.

1. We do not have other support to assist us in ensuring our child's needs are met.

1. A working for home arrangement would assist in the drop off and collection of my child from childcare, whilst also maintaining my ability to perform my prosecutions duties without disruption.

1. As my child would be at childcare during my working hours, there would be no risk of interruption or disturbance that would hinder my ability to perform my duties to the court.

• [18] On 2 August 2024, Victoria Police declined the Variation Request. Its reasons were communicated to LSC Farley in writing through Victoria Police's "HR Assist" system.[30] The reasons given by Victoria Police were as follows:

"This application to WFH on a Monday is not supported as per the initial application in May 2024. An assessment of this application has been conducted and the following considerations: impacts to service delivery and current resources, current court listings and the requirement of Victoria Police prosecutors to be in attendance to prosecute, a regular high rate of unplanned leave on Mondays impacts the requirement to change duties of members at very short notice to ensure service delivery is met with the courts, the current vacancy rate, additional impacts to staffing due to Workcover, parental leave, multiple FWAs that have previously been reviewed and no ability to change. Multiple options have been provided to assist including reduced work hours and other work locations which have all been declined. Consideration has been taken and the requirements of your position as a police prosecutor to provide service delivery to the community is needed."

• [19] The issue said to be resolved by the Variation Request is LSC Farley's requirement to arrive at her child's childcare centre by 6:30pm on Mondays, before it closes. In LSC Farley's first flexible working arrangement request[31] and in the Variation Request, LSC Farley's position was that her commute to and from work was approximately 90 minutes and her concern was premised on possible delays arising from travelling on the public transport system.[32] Notwithstanding this concern, LSC Farley's first request sought approval (which was granted) for her shifts, including on Mondays, to conclude at 5:00pm instead of the usual shift conclusion of 4:00pm in the Melbourne Prosecutions Unit.

• [20] Victoria Police has raised various matters in respect of LSC Farley's oral evidence, which it says calls into question the tenuous nature of the relationship between the Variation Request and LSC Farley's genuine childcare arrangements. While observing that there may be some force to aspects of these submissions, I do not consider this to be a matter relevant to the determination of the dispute as framed before the Commission. I record briefly that there was no contest in this case that LSC Farley made the Variation Request after she had completed at least 12 months of continuous service with Victoria Police (clause 14.4), and that the Variation Request sought a change in working arrangements relating to the circumstance in clause 14.2 of the Agreement that LSC Farley relies upon, being that she is the parent of a child who is school age or younger (clause 14.2(a)). It follows that the Variation Request was validly made pursuant to the terms of the Agreement.

• [21] I consider that having met the qualifying circumstances under the Agreement, there is no requirement under the Agreement to conduct an inquiry into the strength or weakness of LSC Farley's request. In this respect, I agree with the view expressed by Bell DP in The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police (Azmi),[33] where it was said that "once qualified to make the request, the employer either has reasonable business grounds to refuse it or not."[34]

• [22] In any event, the agreed question for arbitration in this case relates exclusively to whether Victoria Police relied on reasonable business grounds to refuse the Variation Request. The question arguably leaves no scope for consideration of procedural or other matters relevant to flexible work arrangement requests. Further, the parties presented their evidentiary cases on the basis of the agreed question. Accordingly, the task before the Commission is to consider the grounds relied upon to reject the Variation Request and determine whether they were reasonable. I consider this position applies equally to the Federation's submission, raised for the first time in closing (but ultimately not pressed as a matter requiring determination by the Commission),[35] that Victoria Police did not comply with s 65A(6) of the Act to explain the grounds for refusal, or clause 14.7(c) of the Agreement to consider any alternative flexibility arrangements that may meet LSC Farley's circumstances.

• [23] Clause 14.9 of the Agreement allows Victoria Police to refuse a request for flexible working arrangements only on reasonable business grounds. While clause 14 of the Agreement does not define reasonable business grounds, clause 14.10 provides a non-exhaustive list of examples of matters that would constitute reasonable business grounds, reflecting s 65A(5) of the Act. In respect of this section, the Explanatory Memorandum to the Fair Work Bill 2008 relevantly said as follows when discussing the concept of reasonable business grounds:[36]

"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."

• [24] In my view, the phrase is to be understood as directing focus towards the business reasons for a decision and their reasonableness. The effect of approving a request on the workplace and the employer's business is a relevant consideration, applying an objective test of reasonableness.[37]

• [25] The reasonableness of the business grounds is to be assessed in the circumstances that apply when the request is made. In reliance upon The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police[38] (Emery), the Federation submits that the Commission should give no weight to examples given by Victoria Police "that may have applied after 2 August 2024." I accept that there are limitations on the relevance of evidence of circumstances occurring after 2 August 2024 when the Variation Request was refused.

• [26] Victoria Police's written reasons for declining the Variation Request state that the application to work from home on Monday "is not supported as per the initial application in May 2024." The 29 May 2024 reasons on which Victoria Police relied to refuse LSC Farley's first request to work from home on Mondays, which had been provided around two months prior, referred to "impacts on service delivery and resources" and, like the 2 August 2024 response, to:

(a) the requirement to attend and prosecute in court;

(b) reduced staffing availability;

(c) a regular high rate of unplanned leave on Mondays at the Melbourne Prosecutions Unit giving rise to a regular need to change duties at short notice to ensure minimum service delivery requirements to the court;

(d) the vacancy rate in the Prosecutions Branch; and

(e) employees on long term leave such as WorkCover and parental leave.

• [27] A ground referred to in the 29 May 2024 rejection which was not repeated in the 2 August 2024 refusal is the reference to "multiple employees with FWAs on Mondays" in the Melbourne Prosecutions Unit, which reduces the number of employees in the office. The evidence before the Commission about the extent to which Victoria Police has other employees working in accordance with a flexible working arrangement enabling them to work from home on a Monday was as follows:

• (a) LSC Farley gave evidence that when she submitted her first flexible working arrangement request, "there were three members with WFH arrangements, including two approved for permanent WFH arrangements on Mondays"[39] and that "none of their arrangements could be changed to accommodate my request."[40] Further, LSC Farley said that in July 2024 she was informed that a WFH request was approved for another member since the rejection of her initial WFH request, which consisted of a WFH day on Mondays and Tuesdays, commencing 1 July 2024.[41] Further again, LSC Farley said that in January 2024, the Melbourne Prosecutions Unit approved a prosecutor's request to work from home.[42]

• (b) Inspector Mueller gave responsive evidence that, "There are currently no prosecutors at the MPU who have the responsibility of appearing in court with ongoing working from home approval by way of an FWA. In August 2024, there was one Senior Constable who had a long standing FWA (which included a work from home component) that was approved during COVID-19, which was being reviewed at the time of LSC Farley's FWA application. That Senior Constable was informed that his FWA would no longer be supported. The Senior Constable subsequently moved units to be closer to his home and no longer works at the MPU."[43]

• (c) Superintendent Handley gave evidence that in May 2024, there were five sworn prosecutors with ongoing working from home approval by way of a flexible working arrangement. Of these employees:[44]

(i) two are supervisors at the rank of Acting Senior Sergeant and do not appear in court;

(ii) the third is a prosecutor currently on long term Workcover (and therefore has not been working in accordance with their flexible working arrangement for some time), and upon their return, will be due to have their arrangement reviewed;

(iii) there is a fourth employee, who is a VPS administrative manager, who is permitted to work from home once per week. This employee does not have any duties appearing in court; and

(iv) the fifth had their flexible working arrangement reviewed and they transferred to another location as the Melbourne Prosecutions Unit was no longer able to support their arrangement.

• (d) With respect to LSC Farley's statement that she was informed in July 2024 that a work from home request was approved for another member since the rejection of her own request, Superintendent Handley's evidence was that this request was refused by her and instead a temporary wellbeing management plan was put in place for the employee that ceased in August 2024 when the employee returned to full medical capacity.[45]

• (e) Superintendent Handley also rejected approving a flexible working arrangement enabling a prosecutor to work from home in January 2024.[46]

• [28] Having regard to the above evidence, I am satisfied that no flexible working arrangements enabling a prosecutor to work from home were granted by Victoria Police at or about the time the Variation Request was declined. To the extent that there were pre-existing work from home arrangements in place, I accept the evidence that Victoria Police communicated with these employees that their arrangements could no longer be supported. It follows that I am satisfied that LSC Farley's request to work from home was treated in a manner consistent with Victoria Police's approach to other employees, and particularly, prosecutors with in-court duties to perform. I also record as a matter of context, noting that it post-dates the 2 August 2024 rejection, that the uncontested evidence is that the only sworn members of the Melbourne Prosecutions Unit with ongoing working from home approval by way of a flexible working arrangement as at December 2024 were those employees referred to at paragraph [27](c)(i) and (ii) above; that is, two Acting Senior Sergeants who do not appe[47] in court and a prosecutor on long term Workcover.47 It follows that I am satisfied that the omission, in the 2 August 2024 refusal, of the reference to flexible working arrangements held by other employees, which was noted in the 29 May 2024 rejection, is explained by these matters.

• [29] The 2 August 2024 refusal proceeded by listing the specific considerations taken into account in assessing the Variation Request. It is these grounds to which I now turn.

• [30] Victoria Police's reasons for refusing the Variation Request refer to current court listings and the requirement of Victoria Police prosecutors to be in attendance at court. The evidence of Superintendent Handley, who oversees the needs of the Melbourne Prosecutions Unit and all the prosecutions units across the state of Victoria more broadly, was that much of the duties of a police prosecutor are performed in the physical court environment: this includes appearance work or duties associated with such work such as witness preparation, consulting with informants and negotiating with practitioners in relation to matters before the courts. Superintendent Handley's position was that this work is not able to be performed from home.[48]

• [31] Having regard to the uncontested circumstances and duties of LSC Farley's position at paragraph [10] of this decision, I am satisfied that LSC Farley's role as prosecutor means that she undertakes appearance work requiring physical attendance in court at the Melbourne Magistrates Court. The matters change daily; there is no pattern to the types of shifts and a prosecutor's work is responsive to the court's schedule. It is the expectation of the court that the work is performed in-person. It follows that I am satisfied that LSC Farley may be required to appear in court on any of her designated working days.

• [32] To this end, Superintendent Handley said that generalist prosecutors such as LSC Farley are rostered to in-court shifts around 65% of the time. I am satisfied that this is reflected in the shifts to which LSC Farley was allocated in 2024: 64 shifts in which she was required to be in court and 26 shifts in which she was not (subject to reallocation to an in-court shift to cover operational gaps).[49] Superintendent Handley also said that in order to meet minimum core delivery in person at court, the Melbourne Prosecutions Unit on any given day requires a minimum of 34 prosecutors (23 general and 11 specialist) to be working in court, and a minimum of 23 prosecutors (including specialist) to be performing out of court duties such as SCC, preparation and write-off shifts.[50] The Federation contends that during cross-examination, Superintendent Handley conceded that while these numbers were required, "we might not provide them." In these circumstances, the Federation's position is that this data represents "ideal" service delivery and not operational requirements. The Federation also submits that the Variation Request does not limit LSC Farley's capacity to meet the requirement of 65% of shifts being performed in court. These are issues to which I return later in this decision.

• [33] Inspector Mueller manages the resource allocation of prosecutors within the Melbourne Prosecutions Unit. Inspector Mueller gave evidence that in August 2024, there were 60 sworn Melbourne Prosecutions Unit staff and 26 court rooms to service, noting that there are numerous variations of court requirements and some court rooms require more than one prosecutor, depending upon the court listings.[51] The Federation criticises Inspector Mueller's evidence as faulty, including on the basis that the 26 court rooms includes specialist courts in which a generalist prosecutor such as LSC Farley would not appear. I do not accept the evidence as faulty. Inspector Mueller gave evidence that LSC Farley would not be rostered to a specialist court.[52] I accept that approximately 20-23 court rooms operate on any given day.[53] Relevantly, where there is a requirement for service delivery in that court, I am satisfied that there will be a need for Victoria Police to roster at least one qualified prosecutor in it.[54]

• [34] I accept that not all of the duties of a prosecutor are in-court duties. Write-off shifts or preparation shifts will be allocated to prosecutors to complement certain in court shifts (but not all in-court shifts).[55] I accept Superintendent Handley's evidence that these out of court shifts are not able to be scheduled on a particular day each week (i.e every Monday).[56] There is no set pattern for working preparation or write-off shifts. Further, on any given working day, a prosecutor scheduled to perform an out of court shift may need to be reallocated to an in-court shift if the need arises, to ensure a sufficient number of prosecutors attend court each day to run prosecutions. I accept the evidence before the Commission that such reallocation occurs often, including at late notice for the reasons that I will shortly describe.

• [35] LSC Farley's evidence was that if she were to work from home on a Monday, it would "free up" an additional prosecutor at the Melbourne Prosecutions Unit that could appear in court, "as they would not be required to undertake office-based duties that would otherwise need to be completed via reallocation."[57] Inspector Mueller rejected LSC Farley's view and the reason for doing so underscores Victoria Police's fundamental concern with the Variation Request. Inspector Mueller said that at the time the Variation Request was refused (and continuing today) there were no surplus prosecutors in the Melbourne Prosecutions Unit who could be reallocated to in-court shifts. It is not in dispute that the work associated with performing a preparation shift or a write-off shift (where it has been allocated to support certain in-court shifts the prosecutor has or will perform) could be undertaken from home. The issue of concern with LSC Farley routinely working from home on Mondays was explained by Inspector Mueller in the following way:[58]

"...if LSC Farley worked from home and the MPU experienced members allocated to court shifts taking UPL, LSC Farley would be unable to be reallocated into those duties as she would be unavailable to attend in person if she were working from home."

• [36] Superintendent Handley's evidence was consistent with this. She said that "LSC Farley working from home on Mondays would actually mean that she is not able to be redeployed to essential court duties when a number of employees who were rostered for those court duties call in the morning and advise they are taking UPL that day."[59]

• [37] To understand the significance of this issue, it is necessary to consider the resourcing constraints at the relevant time, upon which Victoria Police relied in its reasons for refusing the Variation Request. Victoria Police referred to "impacts to service delivery and current resources." It submits that in the relevant period, the Prosecutions Branch was under significant resourcing constraints. It says that these resourcing issues are ongoing and arise from the number of available police prosecutors to prosecute matters before the courts.

• [38] The evidence of Superintendent Handley was that since in or around May 2024, the Prosecutions Branch has been 19% below the number of full-time equivalent resources required to meet service delivery requirements.[60] It is said that this issue, when compounded with other staff absences, meant that the daily average of the relevant workforce in the workplace was 69%. This is in circumstances in which the "Red Line Threshold" (being the critical threshold of a unit being unable to meet its baseline service delivery requirements) for the State of Victoria is 70%.[61]

• [39] Inspector Mueller said that at the time the Variation Request was refused, the Melbourne Prosecutions Unit was only sitting above the Red Line Threshold by four employees. This meant that if another four employees left their positions or were otherwise absent from work, the unit would not be able to meet its minimum service delivery requirements to the courts.[62] The Federation contends that Inspector Mueller's oral evidence that the Melbourne Prosecutions Unit had come "very close"[63] to not meeting its minimum service delivery requirements at the time of refusing the Variation Request is an insufficient ground for rejecting the request. The Federation notes that Inspector Mueller confirmed that at the time of the rejection, there had been no instance where in-court work had not been resourced.[64] In this respect, the Federation's position is that the unit remained four resources off a Red Line Threshold, demonstrating that a red line event did not happen. It says that therefore, Victoria Police had capacity to permit LSC Farley to work Mondays from home, as service delivery had not fallen despite being very close to the Red Line Threshold.

• [40] To the extent that the Federation's position is that Victoria Police's grounds for refusing the Variation Request were not reasonable business grounds because a red line event had not occurred at the time of the rejection, I decline to accept it. The test for considering whether reasonable business grounds exist considers, inter alia, the effect on the workplace and the employer's business of approving the request. Any detriment to the employer must be over and above the small adverse impacts associated with any flexibility requests.[65] I do not consider the test requires there to be a total failure of operations such as, in the present case, an instance where in-court work had not been resourced by a prosecutor on a Monday, before the business ground relied upon can be regarded as reasonable. Such an approach overextends the test, in my view.

• [41] As earlier stated, the Federation submits that to the extent Victoria Police claims to foresee service delivery issues, this is limited to the "ideal" being compromised. It says that the ideal of management is not an appropriate foundation for assessing the Variation Request in circumstances where Victoria Police has obligations to make reasonable adjustments where it can accommodate an employee's need for flexibility. I agree that Victoria Police has obligations to make reasonable adjustments where it can (indeed, the Agreement provides that all roles in Victoria Police can be worked flexibly (clause 14.1)). However, I do not accept that the evidence demonstrates that Victoria Police was focussed only on limiting or avoiding a compromise on its ideal position for the following reasons:

• (a) The evidence discloses that the calculation of the Red Line Threshold commences with the "ideal profile" for the work unit but the threshold itself is then identified by "stripping away" from this ideal all shifts that can be cancelled without impacting Victoria Police's ability to meet its core court requirements.[66] It follows that the Red Line Threshold does not represent the "ideal" as the Federation contends. Rather, it represents the critical point of being unable to meet service delivery to the courts.

• (b) The Federation's reliance as to Victoria Police's "ideal" position arose from Superintendent Handley's evidence that the minimum requirements for out of court duties are not always being met.[67] I accept Victoria Police's submission that this simply means that where it is unable to roster to its out of court needs, it will not meet its minimum service delivery requirements with respect to out of court duties. This is because in-court shifts are prioritised[68] and prosecutors are re-rostered from out of court duties to ensure the lists are fulfilled.[69] It is accepted that there had been no occasion at the time of refusing the Variation Request where Victoria Police had not met its service requirements to the courts, in light of its practice of reallocating prosecutors in this way.

• [42] The Federation contends that there is no nexus between the Red Line Threshold and LSC Farley's request to work from home on Mondays, because such work from home would not be seen as a vacancy. I accept that LSC Farley's role would not be recorded as vacant if she were to work from home. But this is not the issue. The issue of concern is that having LSC Farley work from home on a Monday would significantly restrict the duties that Victoria Police would be able to roster LSC Farley to perform on that day in the context of a unit that is operating in close proximity to the Red Line Threshold.

• [43] While the Federation otherwise submits that it is unfair to hypothesise on potential service delivery shortfalls as a result of accommodating the Variation Request, I consider the unit's proximity to the Red Line Threshold at the time of the refusal to be a relevant and appropriate consideration. In any event, Victoria Police does not rely upon this proximity alone. Its resourcing constraints are connected to its concerns with a demonstrated regular high rate of unplanned personal/carer's leave (UPL) on Mondays.

• [44] Where a prosecutor is rostered to an in-court shift, but they are unable to attend work due to UPL, another prosecutor must be found to complete that shift. As UPL is often not known until the start of the day, it is common that prosecutors will be reallocated from out of court shifts to in-court shifts at the last minute. Both Superintendent Handley and Inspector Mueller gave evidence that the UPL in the Prosecutions Branch is significant.[70]

• [45] Victoria Police says that in the Prosecutions Branch, more UPL is taken on Monday than any other day.[71] To ensure flexible resourcing movements on Monday, Victoria Police places importance on having prosecutors in the office (which is a short walk to the courts) on this day.[72] To this end, Superintendent Handley's concern was that if LSC Farley worked from home on Monday, she would not be able to be rostered or reallocated to an in-court shift if UPL on that day necessitated a reallocation of duties.[73]

• [46] The Federation submits that the data relied upon by Victoria Police to demonstrate that more UPL is taken on Monday does not explain how the Variation Request disadvantages the work unit operations, as the data is made up of personnel outside of the Melbourne Prosecutions Unit.[74] The Federation says that Victoria Police could not demonstrate that the Variation Request was assessed against relevant data such as the number of occasions where prosecutors rostered to in-court appearances had taken UPL.[75]

• [47] I accept the Federation's contention that the evidence as to the increasing nature of UPL addresses the Prosecutions Branch (of which the Melbourne Prosecutions Unit forms part).[76] It discloses that in May 2024, there were 217 instances of UPL across the branch. However, it is not correct to say that the only data relied upon by Victoria Police extends to personnel outside the Melbourne Prosecutions Unit. Inspector Mueller gave evidence that the Melbourne Prosecutions Unit averages between 6 and 22 employees on UPL each day.[77] I accept the evidence of Inspector Mueller and Superintendent Handley that UPL is more prevalent on Mondays, having regard to the nature of their respective roles and their experience in rostering for the unit, which I consider to be persuasive and compelling. Their oral evidence is supported by the unplanned personal leave data (by day of the week for the Melbourne Prosecutions Unit) attached to Superintendent Handley's witness statement.[78]

• [48] I consider it to be appropriate for Victoria Police to take this data into consideration, having regard to the specific nature of LSC Farley's request to work from home on a Monday. I am satisfied that resourcing on Mondays can generally be more problematic in the Melbourne Prosecutions Unit than other days of the working week as a consequence of the trend towards UPL on Mondays. I find that this impacts the capacity for Victoria Police to ensure the required number of prosecutors can attend court on Mondays, as required.

• [49] The Federation submits that the decision to disallow LSC Farley to work from home in case there is a need for more than one prosecutor in a court room, and should other available prosecutors not be available and that need arises on a Monday amounts to a "three-stage contingency plan" and does not provide reasonable grounds for refusing the Variation Request. However, in refusing the Variation Request, Victoria Police did not rely upon a three-stage contingency plan. Victoria Police's position is that each of these matters provide relevant context to the operational realities of the Melbourne Prosecutions Unit and were relevant to the decision to reject the Variation Request. I accept this distinction. The reasonableness of the business grounds relied upon by Victoria Police are to be assessed by reference to the circumstances at the time. In the present case, multiple circumstances were relied upon to refuse the Variation Request and were informed by various resourcing constraints affecting the Melbourne Prosecutions Unit at that time.

• [50] To this end, a further constraint relied upon by Victoria Police relates to the February 2024 requirement, introduced by Executive Command at Victoria Police, to limit advertisements of sworn officer positions only to occasions where the vacancy rate is greater than 10% of the set FTE.[79] At the time the Variation Request was refused, the vacancy rate in the Prosecutions Branch generally was 8% for sworn officers and 5% in the Melbourne Prosecutions Unit.[80] The restriction was implemented due to the demands for resources on the front line with the result that some non-front-line units have been required to reduce their workforce.[81]

• [51] Further, Superintendent Handley and Inspector Mueller gave evidence that at the relevant time there were staffing impacts due to long term employee absences. The evidence discloses that there were 27 employees of the Prosecutions Branch absent from the workforce on Workcover (three of them from the Melbourne Prosecutions Unit), six members of the unit on assignment to other prosecutions units,[82] and three members of the unit on parental leave.[83] These numbers are not included in the calculation of the vacancy rate.[84]

• [52] The Federation's position is that the Variation Request does not place a further constraint on resourcing because it does not vacate a position within Melbourne Prosecutions Unit.[85] It submits that the performance of a shift from home does not result in the shift being lost. However, I do not accept this proposition is entirely accurate. In circumstances where LSC Farley has or will perform an in-court shift to which a preparation shift or a write-off shift is attached, such out of court shift could be performed from home and it is not in dispute that the shift remains productive. Indeed, this is why an alternative option proposed by Victoria Police to LSC Farley included the possibility of approved ad hoc working from home arrangement on occasion on Mondays (pursuant to which LSC Farley could request to work from home with prior arrangement with her unit manager, subject to the needs of the unit on that day).

• [53] However, I do not accept the proposition that a working from home arrangement on Monday does not place further constraints on resourcing in the unit simply because the arrangement does not amount to a staff vacancy. The evidence demonstrates the operational complexities associated with rostering prosecutors in the Melbourne Prosecutions Unit. These complexities are compounded if LSC Farley is unable to be allocated to an in-court shift, and unable to be reallocated to an in-court shift due to operational requirements. Contrary to the Federation's submission, the issue is not whether LSC Farley remains capable of performing 65% of her shifts in-court, but rather whether service delivery requirements to the courts could be met having regard to the resourcing pressures faced by the Melbourne Prosecutions Unit at the relevant time.

• [54] The refusal of the Variation Request concluded by stating as follows:

"Multiple options have been provided to assist including reduced work hours and other work locations which have all been declined. Consideration has been taken and the requirements of your position as a police prosecutor to provide service delivery to the community is needed."

• [55] The Federation contends that no comprehensive alternatives were provided to permit LSC Farley time to attend to her child. I disagree. The evidence demonstrates that Victoria Police proposed the following alternatives to LSC Farley:

(a) To transfer LSC Farley to the Sunshine Prosecutions Unit which was closer to her home address and childcare centre. This would reduce LSC Farley's travel time to work and allow her to perform her preferred shift length in the workplace.

(b) That LSC Farley work shorter hours on a Monday and still work her preferred shift length of 9 hours on Tuesday and Wednesday; or alternatively work longer hours on Tuesday and Wednesday.

• [56] The Federation contends that the alternative of LSC Farley being relocated to Sunshine Prosecutions Unit on Mondays was "lacking" as the public transport system would not support a timelier service. Further, the Federation contends that the offer of Sunshine Prosecutions Unit as an alternative affirms that LSC Farley's request to perform work at an alternative location on Mondays was achievable. It says that Victoria Police could have accommodated LSC Farley working from home on Mondays because there is "no tangible difference" between working from home and working from Sunshine Prosecutions Unit when it comes to considering managing operations at the Melbourne Prosecutions Unit.

• [57] The Federation also contends that had the position been as "dire" as Victoria Police suggests, "the alternative option to reduce the number of days from three to two would not have been supported, as it was." The Federation says that by supporting LSC Farley to work less, as opposed to working at home on Monday,[86] demonstrates the business grounds to refuse LSC Farley are not reasonable.

• [58] I do not accept these contentions. At the outset, I note that the alternative options were advanced by Victoria Police as proposals prior to the refusal of LSC Farley's requests to work from home on Mondays. They do not comprise of Victoria Police's business reasons for refusal. As such, they are not matters that squarely fall for determination in this decision. Accordingly, there was no detailed evidence before the Commission as to the mechanics of how these arrangements would work or how they would impact the Melbourne Prosecutions Unit, because the options were declined by LSC Farley. In any event, I do not consider that advancing options for consideration by LSC Farley in the context of Victoria Police considering her circumstances, weighs against a finding that the business grounds relied upon were reasonable. The proposals demonstrate, in my view, that the parties discussed and genuinely tried to reach agreement on working arrangements that would reasonably accommodate the parties' respective needs.

• [59] I broadly observe that in respect of the first proposal, the reasons given by LSC Farley for declining a relocation to Sunshine Prosecutions Unit (being that the commute from home to work would involve the use of a car and associated travel and maintenance costs) does not mean that the proposal itself was lacking. Rather, for her own reasons, LSC Farley did not wish to accept it. It is sufficient, in my view, to record Victoria Police's view that had the proposal been accepted, it would have involved LSC Farley working on site within that unit,[87] and therefore available to perform in-court duties as and when required.

• [60] As to the second proposal, I broadly observe that LSC Farley sought and was granted a flexible working arrangement that involved her finishing at 5:00pm on Mondays, but subsequently contended in the Variation Request that her 5:00pm finish time did not provide sufficient time to commute to the childcare centre by 6:30pm. Victoria Police proposed different hours on LSC Farley's working days, including an earlier finish on Mondays to accommodate her circumstances. An adjustment to the roster such that LSC Farley did not work Mondays at all was a consideration but not one that Victoria Police specifically proposed.[88]

• [61] I do not consider that proposing that LSC Farley make ad hoc requests to work from home on a Monday indicates that Victoria Police could in fact accommodate the Variation Request. An ad hoc request is different from a permanent arrangement on a Monday. An ad hoc request allows the unit to properly assess, in my view, the individual day that is being requested and determine the specific resourcing allocation requirements for that day and make a determination in those circumstances.

• [62] The contention that no comprehensive alternatives were provided to permit LSC Farley time to attend to her child is contrary to the evidence and the earnest endeavours I consider were made by Victoria Police to balance LSC Farley's concern about collecting her child from childcare before the 6:30pm closure against its operational needs.

• [63] A substantial proportion of LSC Farley's duties as a police prosecutor require her to be in court or to be ready, willing and able to attend court (including within a short timeframe) if the need arises. While there are shifts that LSC Farley will be rostered to work during which she does not need to be physically present in court, I am satisfied on the evidence that there is no pattern to such shifts because this type of shift is dependent on the type of court work being undertaken by the prosecutor, and if such a shift occurs, it falls at different times. Given the priority attached to in-court work, Victoria Police will reallocate a prosecutor from an out of court shift to an in-court shift where this becomes operationally necessary.

• [64] At the relevant time, the Melbourne Prosecutions Unit was under resourcing constraints to ensure that it had a sufficient number of prosecutors in the courts to prosecute matters on behalf of Victoria Police. These resourcing constraints form the business grounds upon which Victoria Police relied to refuse the Variation Request.

• [65] Where there is a spike in UPL on a Monday of between 6 and 22 employees in the Melbourne Prosecutions Unit, it significantly impairs capacity to meet minimum service delivery requirements. Inspector Mueller describes being often faced with the situation where she does not have sufficient prosecutors to attend all court duties. I am satisfied that granting the Variation Request would preclude LSC Farley from being rostered to in-court duties on Mondays and from being readily available for reallocation to in-court duties as operationally required at short notice on that day. In the context of the Melbourne Prosecutions Unit being close to the Red Line Threshold at the relevant time, and given the other staffing pressures identified in the business grounds, including the ban on filling vacancies (which has led to lower than desired staff numbers in the unit), such a restriction would be significantly impactful to the operation of the Melbourne Prosecutions Unit and its capacity to fulfil its requirements to the court. This impact is, in my view, well over and above the inevitable small adverse impact associated with accommodating a flexible working arrangement. I consider that the business grounds upon which Victoria Police relied, taken together, paint an objectively persuasive picture of the operational realities upon which Victoria Police relied to refuse the Variation Request.

• [66] I am therefore satisfied, and I find that the business grounds upon which Victoria Police relied to refuse the Variation Request were reasonable business grounds within the meaning of clause 14.9 of the Agreement.

• [67] For the reasons given, the question posed for determination is answered as follows:

Question: Were the grounds relied upon by the Employer to refuse the flexible working arrangement application of Leading Senior Constable Melissa Farley on 2 August 2024 'reasonable business grounds' pursuant to clause 14.9 of the Victoria Police Enterprise Agreement 2019?

• [68] The dispute is determined accordingly.

S. Cheligoy, of Counsel, instructed by Clayton Utz, for the respondent.

[1] Digital Hearing Book (HB) 14 at [3.1]

[6] HB 223 at [17]; HB 271 at [20]; HB 290-293

[12] Transcript PN82-83, PN91-93, PN97-98

[25] HB 91; HB 283 at [62]; HB 351-353

[26] HB 280-281 at [57(c)] and [60(c)]; HB 88-89

[32] HB 79-80; HB 111-112; Transcript PN280-281

[33] [2022] FWC 2223

[36] Section 65(5A) was introduced by the Fair Work Amendment Act 2013 but the Explanatory Memorandum to the Fair Work Amendment Bill 2012 did not provide further guidance

[37] The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police [2018] FWC 5695 at [45] (Emery). These principles were not disturbed on appeal, see Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria [2019] FWCFB 305

[48] HB 273 at [23(a)], [23(b)] and [24]

[57] HB 78 at [60]; see also HB 122 at [37]

[70] HB 278 at [44]; HB 225 at [28]

[71] HB 278 at [44] and HB 315; HB 225 at [28]

[78] HB 314-316; see also Transcript PN844-851

[79] HB 278 at [42]; HB 310, HB 226 at [31]-[32]

[80] HB 284 at [69(b)]; Transcript PN536

[88] See eg Transcript PN679; PN755-756

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