What do employers need to consider and why?

Flexible work requests have become increasingly common, especially with the rise of remote work and the need to accommodate personal responsibilities and our work life. The new legislative changes require employers to meet with their employee who has made a flexible work arrangement request and genuinely try to reach an agreement. The decision from the Fair Work Commission below emphasises what employers need to consider before simply rejecting an employee’s flexible work arrangement request.

Flexible Working Arrangements request – refusal on reasonable business grounds - Natasha Fyfe v Ambulance Victoria [2023] FWC 49

The recent Fair Work Commission decision of Natasha Fyfe v Ambulance Victoria [2023] FWC 49 highlights key factors that employers need to consider relating to reasonable business grounds to reject an employee’s flexible working request under s.739 of the Fair Work Act 2009 (Cth) (‘FW Act’). The FWC decision related to whether Ambulance Victoria had reasonable business grounds to reject Ms Fyfe’s request to change her night shift arrangements.

Ms Fyfe requested that she change her night shift commencement time from 6pm to 9pm and finish in the morning at 6am rather than 8am, allowing her enough travel time and forego any additional overtime at the end of her shift, while she cares for her three children while her husband is at work. Ms Fyfe wanted to continue working full time and working the night shift. Ambulance Victoria has a complex rostering system with seven roster lines and two officers per line.

Ambulance Victoria rejected Ms Fyfe’s request to change her night shift hours for several reasons, particularly as there were ongoing issues with resourcing the night shift generally. The FWC is able to deal with this dispute under the new section 65C of the FW Act. Employers have a new obligation to discuss the request with the employee and genuinely try to reach an agreement with the employee about changes to their working arrangements.

The FWC highlighted that the term “reasonable business grounds” are assessed on an objective basis. The FWC stated that the use of the word “reasonable” requires some form of balancing, that is, a balance between the employers and employee’s interests.

Ambulance Victoria rejected Ms Fyfe’s request within 16 days, however failed to meet with Ms Fyfe to discuss her request, despite Ms Fyfe being open to discussion and negotiations. On that basis Ambulance Victoria did not have reasonable business grounds given they didn’t have a discussion with Ms Fyfe to try and genuinely reach an agreement. Ambulance Victoria put forward a number of business grounds for their refusal to accept Ms Fyfe’s request to work flexibly however failed to explain any of their reasons to Ms Fyfe.

The Fair Work Commission found that at the time it refused Ms Fyfe’s flexible work arrangement request, Ambulance Victoria did not have reasonable business grounds to do so, and she should be afforded the opportunity to have that discussion.

Tip for Employers: Make sure you have a meeting with your employee who has submitted a flexible work arrangement request within 21 days, and genuinely try to reach an agreement with the employee. Consider all possibilities that balance both yours and the employee’s needs.

Contact us for advice for your particular circumstances.

Image used from Emergency Services Foundation - Ambulance Victoria