FWC dismisses nurse's flexible work plea

The FWC has dismissed a part-time nurse’s plea to confine her work availability to four days per week.

Although the employee submitted that she needed to keep three days each week free to fulfil carer responsibilities for her 14-year-old son, the FWC, in a decision handed down on 25 January, 2022, found the employer was not obliged to cater to her request, given it had already attempted to offer some flexibility in the nurse’s schedule.

The employee provided health services to patients with chronic mental health conditions, working on a permanent part-time basis. For many years, she restricted her availability to four days per week. However, in October 2020, her employer ceased its practice of allowing employees to “pencil in” their availability, requiring that all part-time staff be available seven days per week.

The employee applied to the FWC, seeking an order that her employer accommodate her reduced availability in its roster.

The hearing

The nurse directed the FWC to the origins of permanent part-time work as a “vehicle for those with caring responsibilities”. She also submitted that her employment award did not require workers to be available to be rostered seven days per week.

The employer denied treating the nurse differently or unfavourably, stating that two-thirds of its staff had similar carer responsibilities. It submitted that, if it catered to the roster arrangement sought by the nurse, it would be obliged to provide similar accommodations to other staff, which would preclude it from building a roster sufficient to cater to patient needs. 

The employer also pointed to the fact that it had already agreed to provide the nurse with flexible starting and finishing times three days per week to accommodate her school drop off and pick up responsibilities.

Judgment

Given the employer’s offer of flexible working hours, the FWC was not satisfied that working three to four shifts across seven days was a requirement with which the nurse could not comply.

It was also not satisfied that the nurse’s evidence suggested that, as a high school student, her son would be unable to take public transport to and from his school and after-school activities where necessary.

The FWC concluded it was not appropriate to order the employer to accommodate the nurse’s rostering request and dismissed her application.

Key Takeaways

• Part-time workers may be obliged to make themselves available for rostering across seven days per week
• Where an employee seeks specific rostering arrangements, the FWC will consider the precedent such a request would set for other staff within the organisation
• As the case above demonstrates, where an employer has already offered some flexible working arrangements, the FWC will be less likely to order that it cater to an employee’s specific requests