Mom of 3 kids asks for ‘flexible work’ but is rejected

Was there a 'reasonable business ground' to deny paramedic's request?

Mom of 3 kids asks for ‘flexible work’ but is rejected

Under Australian labour laws, employers must consider several factors when deciding whether to accept or reject a flexible work arrangement requested by an employee.

The employer must balance the benefits of the flexible working arrangement for both parties.

It’s a delicate balance to determine the employee’s ability to perform their duties to the required standard and its effect on the business’ ability to serve its customers adequately.

In a recent case, a working mother tried to propose requests suitable for her needs to meet her responsibilities. The employer denied the requests, arguing it would encounter “operational difficulty.”

Background of the case

The employee asked the Fair Work Commission (FWC) to deal with a dispute under flexible working arrangements (FWA), specifically regarding an enterprise agreement between parties.

The employee was a young mother with three children and had been employed as an advanced life support ambulance paramedic since 2015 by Ambulance Victoria (AV).

According to records, “like many working carers and parents, disproportionately mothers, the employee is trying to balance her work and family life.”

She then submitted a flexible work request to her employer, seeking to adjust her night shift times to accommodate her care responsibilities. The normal night shift commences at 6:00 pm and finishes at 8:00 am.

The employee argued that she could work the normal night shift because she needed to be home “until at least 6:30 pm and return by 8:00 am so that she can care for her children while her partner is at work.”

She proposed that she starts her shift at 9:00 pm (rather than 6:00 pm) and finish the night shift at 6:00 am (rather than 8:00 am), adding that the change would “allow her enough time to travel to her branch in the evening and to travel home in the morning. The amended hours would also allow for incidental overtime at the end of her shift.”

She could still undertake 64% of the night shift if the employer agreed. However, the former rejected her proposal.

When the employee submitted the dispute before the FWC, the commission said it needed to consider if there were existing “reasonable business grounds” for the employer’s refusal.

What are “reasonable business grounds”?

The FWC considered the “ordinary meaning” of “reasonable business grounds” under the employee’s agreement with the employer.

It said it needed to assess the case “objectively” as well as consider the “nature of the business” and “the needs of the ‘customers’ it serves.”

AV is a large state-funded organisation providing critical health services to the community. Specifically, it offers state-wide emergency and non-emergency paramedical services to all members of the public.

That service provision is organised and rolled out on a geographical or zoned basis, so there is state-wide availability.

AV’s operational requirements are entirely dedicated to delivering these services, and according to the FWC, a “critical part” of this is rostering.

At a branch level, each branch is funded to deliver a specified number of operational response hours per day based on the communities’ needs. There is then “a specific number of time equivalent employees to fill its roster and set crew configurations.”

As a defence, the employer argued that it denied the request since the employee was “unable to provide start and finish times out of the roster configuration.” But the employee said that this was not a reasonable business ground since the shifts she proposed “aligned with the normal afternoon start and finish times of the employer’s branch.

The employee submitted another request where she proposed to work as a “spare,” filling vacant shifts across branches to fulfil requested rostered hours. The employer again rejected this request and said her proposals “did not meet operational demands and provided operational difficulty.”

Regarding “flexible work arrangements,” do employers have to accommodate WFH requests? HRD previously reported on an FWC decision that said employees could not insist on a remote working arrangement when the employer’s needs are reasonable to have them work on-site.

The FWC’s decision

The commission found a certain clause in the enterprise agreement between parties that stated employees may request a flexible work arrangement “in specified circumstances” that include:

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

(c) is a carer within the meaning of the Carer Recognition Act 2010 (Cth);

(c) has a disability;

(d) is 55 years or older;

(e) is experiencing violence from a member of the employee’s family;

(f) provides care or support to a member of their immediate family or a member of the employee’s household who requires care or support because they are experiencing violence from the members’ family;

(g) has a medical condition that requires an FWA; or

(h) is transitioning to retirement in accordance with a documented and agreed retirement plan.”

The commission found that the employee was entitled to apply since she was qualified for special circumstances. It said that the clause intended that employees have a “genuine and substantive right to seek alternative flexible arrangements,” and because of that, the commission was “not required to balance the employee’s circumstances against the employer’s grounds” under case law.

“The FWA allows working parents to balance work and family satisfactorily, reduces staff turnover and improves employee well-being,” the FWC said, and the burden was actually on the employer “to establish reasonable business grounds.”

Thus, the commission said the employer “did not have reasonable business grounds to refuse the employer’s requests.”

Last December, HRD reported that the Workplace Gender Equality Agency had encouraged employers across the country to be “creative” when implementing their flexible work policies as remote and hybrid work become even more popular in workplaces.

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