Was employer's offer of 'blended roster' reasonable?
The Fair Work Commission (FWC) recently dealt with a dispute regarding flexible working arrangements for a senior police officer in Victoria.
The case centred on whether Victoria Police had reasonable business grounds to refuse the officer's request for a modified work schedule.
This decision highlights the ongoing challenges in balancing employee needs with operational requirements in law enforcement. It delves into the complexities of implementing flexible work arrangements in a high-demand, public-facing organisation like the police force.
The dispute involved a leading senior constable (LSC) who had been working as a crime scene officer since 2004 at the Narre Warren Crime Scene Services unit.
The worker, who was over 55 years old and had elderly parents requiring care, sought a flexible working arrangement (FWA) to better manage personal responsibilities.
In July 2023, the worker submitted an FWA request to work eight 10-hour shifts per fortnight. This arrangement would have provided two additional rest days each fortnight.
The worker explained:
"The extra rest days granted by 10-hour shifts will allow me to better their care and my own welfare. I don't want to rely on having to take unplanned leave as it has unfair impact on my work colleagues and I don't want to unwittingly use personal leave that I may need in the future."
The worker emphasised his willingness to work any shift, including weekends, to assist with rostering flexibility.
He also noted that when assisting his parents, it often took around four hours at a time, and that his siblings had their own family commitments, making it difficult for them to provide additional care.
According to records, this was not the first time the worker had sought a flexible arrangement. A previous six-month trial of a similar schedule had been implemented in February 2023 but was cancelled in June 2023.
During this trial, the worker was required to document the work performed during the additional two hours of his shift. The worker believed the workplace landscape had changed since then, making it more conducive to accommodating their needs.
The worker stated: "Considering the minimal impact during the trial and the additional resources, if I was to perform 8 x 10-hour shifts with two additional [rest days (RD)], I consider it would have little to no effect on the productivity of the Crime Scene Services (CSS) and its client workgroups as there is now more personnel and thus better flexibility."
The employer’s detective inspector was tasked with considering the worker's application. She met with the worker in early August 2023 and offered a "blended roster" proposal, which the worker declined.
The blended proposal would have involved working four 10-hour shifts and five 8-hour shifts each fortnight.
The worker rejected this proposal, citing past experiences: "After my experience of being intimidated and dragged back to work the watch house, regardless of having CSS work to do, I do not wish to accept this offer."
On 15 September 2023, Victoria Police formally communicated its refusal of the FWA request, citing 11 reasons based on operational and service delivery concerns. These included:
"Narre Warren CSS works in conjunction with Cardinia CSS and operates with a minimum staffing profile of 10 O/R's per day... The proposed arrangement for 8 x 10-hour shifts per fortnight impacts current service delivery by a loss of two (2) operational shifts per fortnight, and impacts Narre Warren's ability to roster to a CSS response in accordance with their service commitment to the community."
The employer also noted an upward trend in crime categories within the area and increased recovery of stolen vehicles, emphasising the need for maintaining operational capacity.
They highlighted that the Narre Warren CSS had an established strength of 17 full-time equivalent positions and two part-time employees, but capacity had been reduced due to long-term leave absences and other factors.
The case was considered under Clause 14 of the Victoria Police Enterprise Agreement 2019. This clause outlines the right to request flexible working arrangements and the process for considering such requests. Key provisions include:
"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;"
These provisions set the framework for assessing whether Victoria Police had reasonable grounds to refuse the worker's request.
In evaluating the dispute, the FWC examined whether Victoria Police had reasonable business grounds for refusing the FWA application.
The Commission considered the operational needs of the CSS unit, the impact on service delivery, and the alternatives proposed by the employer.
"The focus of consideration in this matter is on whether Victoria Police, having refused [the worker’s] Flexible Work Arrangement (FWA) application, had reasonable business grounds for doing so. I find that it did.”
This statement underscores the Commission's conclusion that Victoria Police's decision was justified based on operational requirements. Ultimately, the FWC determined that Victoria Police had reasonable business grounds for refusing the worker's FWA request.
It then ordered for the employer’s alternative proposal to be accepted:
“I recommend to both Victoria Police and [the worker] that an arrangement be entered into as soon as possible which has [the worker] moving to a blended roster arrangement of 4 x 10-hour shifts and 5 x 8-hour shifts,” the FWC said.
“If [the worker] attempted to reject this recommendation as being insufficient for his needs, he should take account of the French proverb often attributed to Voltaire that "perfect is the enemy of the good,” it added.
“More prosaically, a part-way compromise is still better than nothing at all,” the FWC said.
