Employers may only refuse an employee’s request for flexible work arrangements if they have “reasonable business grounds” to do so.
Section 65 of the Fair Work Act 2009 (Cth) (FW Act) provides a non-exhaustive list of what might constitute reasonable business grounds including where it would be too costly, impractical or inefficient for employers to accommodate an employee’s proposed changes.
The scope of what constitutes reasonable business grounds was recently considered by the Fair Work Commission (FWC) in the decision of The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police [2022] FWC 2223.
The employee was a full-time First Constable for the Victoria Police and worked in the Transit Safety Division. Within the Transit Safety Division, full-time officers were required to work a shift pattern of five, eight-hour shifts per week – the majority of which were made up of “van” shifts.
In or around October 2021, the employee requested that he change his shift pattern to four, 10-hour shifts per week to accommodate his caring responsibilities for his wife and children.
Following consultation, the Victoria Police ultimately refused the request and set out in writing the reasons for refusal, which included that:
The Police Federation of Australia (Victoria Police Branch) (TPAV) subsequently made an application on behalf of the employee for the FWC to deal with a dispute under the relevant enterprise agreement in relation to the employee’s flexible work arrangement.
Satisfied that the employee’s personal circumstances made him eligible to request a flexible work arrangement, the FWC was required to consider whether the Victoria Police had “reasonable business reasons" to refuse such a request.
TPAV submitted that there were no reasonable business grounds for refusal, stating that the Victoria Police had significant resources to perform any needed van shifts and a loss of two shifts per fortnight would have only a “small adverse impact” on its operations.
It further submitted that the employee was willing to reasonably perform administrative work, such as paperwork and correspondence, to make up for the two extra hours he would have otherwise worked each shift.
However, the Victoria Police maintained that it was experiencing serious staffing shortfalls and a meaningful portion of the employee’s work required him to perform van shifts, not administrative tasks.
The FWC ultimately accepted that the Victoria Police was experiencing clear shortfalls in available staffing levels which were not temporary and were well in excess of typical absences.
The FWC found that the Victoria Police’s reasons for refusal were not limited to van shifts and instead, expressly referred to its entire “business as usual requirements” and that van shift shortages did “not take into account any additional tasking, operations and additional deployments”.
The FWC considered it “non-trivial” that changing the employee’s hours as requested would result in the employee being unable to perform sufficiently productive work for up to two hours per shift.
The FWC stated at [94] that:
“If a flexible work arrangement would result in an employee being unable to perform useful or productive work for a meaningful portion of their proposed work pattern, I consider this would prima facie be a reasonable business ground to refuse a flexible work arrangement request.”
In considering the above, the FWC was satisfied that the Victoria Police had reasonable business grounds to refuse the employee’s request and dismissed the application.
The scope of what might constitute reasonable business grounds may include circumstances where an employee would be unable to perform useful or meaningful work for a significant portion of their work pattern. In this decision, the employee’s request meant that he would be unable to perform productive work for two hours per day and as such, the employer had reasonable grounds for refusal.
Employers should also be mindful of the recently passed amendments to the FW Act which now require employers to discuss requests for flexible work arrangements with employees and provide detailed explanations for any refusal. The amendments will take effect from 6 June 2023.
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