By Charles Power
Under the Fair Work Act 2009 (Cth) an eligible employee may request a change in working arrangements relating to certain prescribed circumstances (e.g. carer or family responsibilities, being over 55 years of age, having a disability, etc.).
The employer may refuse the request only on reasonable business grounds.
If an employer wishes to refuse the request they must give the employee a written response to the request within 21 days detailing the reasonable business grounds that justify refusal.
In Victoria Police v The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria (2019) the Fair Work Commission dealt with a dispute over a request by a detective senior constable for a flexible working arrangement by reason of him being 57 years old.
The employee requested that he be allowed to work 10 hour shifts over 4 days per week rather than working 8-hour shifts over 5 days per week.
The employer initially relied on the fact that the employee’s ability to work overtime would be curtailed by the 4 x 10 arrangement. However, the FWC considered that the impact would not likely be great and was therefore not a strong enough reason for refusing the request.
The FWC observed that the flexible working arrangement sought was for a 12-month period, and the employer would have the opportunity to review the impact of the flexible working arrangement and determine at that time whether the arrangement can continue.
This further diminished the employer’s capacity to reject it on the grounds claimed.
The employer then sought to introduce new reasons for refusing the request, namely that:
- regular performance of overtime and recall to duty are an inherent requirement of his position;
- costs flowing from granting the request would either impose an unreasonable financial burden, or alternatively they would lose a resource one day each week; and
- granting the proposal would be damaging to the morale and effectiveness of the unit in which the DSC worked.
The FWC ruled that, once an employer had given reasons for refusing the request within the required 21 day period, they could not later seek to rely on further reasons not included in that original notification.