Worker requested continuation of flexible working arrangement
The Fair Work Commission (FWC) recently dealt with a dispute where a worker sought to continue a flexible working arrangement that had been in place for over a decade. The arrangement allowed him to fulfill his parental responsibilities for school pickups and after-school activities.
The worker argued that his employer couldn't refuse his formal request simply because it conflicted with the enterprise agreement's roster provisions. He maintained that National Employment Standards (NES) provisions take precedence over enterprise agreement limitations when it comes to flexible work for parents.
The case raised important questions about the interaction between enterprise agreements and the NES, particularly regarding an employer's grounds for refusing flexible working arrangement requests.
The worker started at Paper Australia Pty Ltd in January 1985 as an apprentice boiler maker. After qualifying in this trade, he gained further qualifications in fitting and turning.
His most recent position was team leader planner roll workshop, and he shared caring responsibilities with his wife for their three school-aged children, with the eldest due to complete year 12 in 2024.
From 2011 until July 2024, the worker had an informal flexible working arrangement that allowed flexibility in his Thursday start and finish times. This let him handle school pickups and after-school activities.
The arrangement ended when the general manager informed staff that a recent audit found these flexible arrangements weren't compliant with the enterprise agreement.
When the informal arrangement ended, the worker couldn't manage his children's care. He applied for a formal flexible working arrangement under section 65(1) of the Fair Work Act 2009 (the Act) on 9 August 2024. The employer rejected his application on 30 August 2024, claiming it didn't comply with clause 18.6 of the enterprise agreement.
The enterprise agreement applying to the worker was the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024. The employer rejected the application citing "reasonable business grounds," stating that "the enterprise agreement does not provide a mechanism for changing the roster prescribed in clause 18.6 of the enterprise agreement by individual agreement between the employer and employee."
The worker's request reflected the working roster he had followed since 2011. It involved swapping the Thursday 10-hour shift to the Friday 8-hour shift in week one and swapping the Thursday 10-hour shift to the Monday 8-hour shift in week two. It also varied his start and finishing time by 30 minutes on Thursdays.
These changes would let him work 8 hours each Thursday, from 6:30am to 3:00pm, accommodating his parental responsibilities.
After failing to resolve the matter at the workplace level, the worker applied to the FWC. He argued the refusal wasn't based on any reasonable business grounds listed in section 65A(5) of the Act, such as cost, capacity, impracticality, productivity impact, or customer service effects.
The worker relied on clause 2.3 of the agreement, which contained a National Employment Standard precedence clause. This made clear that where inconsistency exists between the agreement and the NES, the more beneficial term prevails. He argued that the employer's claim that clause 18 prohibited granting the request was invalid, as the NES provisions would override conflicting agreement terms.
Section 55(1) of the Act states that "A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards." The worker argued this meant the agreement couldn't prevent him from accessing his NES entitlement to request flexible working arrangements.
As an alternative to the formal flexible working arrangement, the employer had offered to use a "make-up time" provision. This would require the worker to work 2 hours at the end of the next 8-hour shift if he finished 2.5 hours early on Thursday. The remaining 0.5 hours would be made up with an earlier start time of 30 minutes on the following Thursday.
The worker rejected this option as impractical, providing evidence of a $140 wage loss after being unable to make up 2 hours in one pay period. He argued this approach wasn't sustainable for a long-term arrangement and didn't provide the same benefits as his requested flexible working arrangement.
The employer argued it had no capacity to amend the roster without consensus from all parties to the agreement. They pointed to clause 18.2, which stated: "Dayworkers agree to work 38 hours but be paid for 36 hours, on the basis that Dayworkers work a 4-day week. Accordingly, the parties have agreed that any change to this roster for Dayworkers will require the agreement of the parties or a new replacement Agreement."
They also cited clause 18.5: "Notwithstanding any other provision of this Agreement, a change to the 38 ordinary hours 4 day per week roster may only be made by agreement between the parties to this Agreement."
The employer argued these provisions required consensus from all parties to vary the roster, and since there was no consensus, they couldn't grant the request.
The employer claimed its position was reinforced by the rejection of its proposal during bargaining that start and finish times be included in the agreement's Individual Flexibility Arrangement clause.
They maintained that granting the requested order would not only contravene clause 18.5 of the agreement but also section 65C(2A)(b) of the Act, which prohibits the FWC from making orders inconsistent with terms of a fair work instrument.
In considering the case, the FWC emphasised that the application was made under section 65B of the Act, which empowers the Commission to deal with disputes arising from an employer's refusal of a flexible working arrangement request. The FWC noted that section 65 of the Act is a National Employment Standard that cannot be excluded by terms in an enterprise agreement.
The FWC stated in paragraph 35 of its decision: "Flexible working arrangements concern changes to when, how or where an employee performs their work and therefore this can include changes to hours of work, start and finish times and patterns of work. The nature of the flexibility sought by [the worker] is of this kind. Therefore, the roster contained in clause 18 cannot be used as an authority over the minimum NES; this is inconsistent with an entitlement and further limits [the worker's] entitlement to a flexibility based on his parental responsibilities."
The FWC addressed the employer's argument that granting the request would breach the agreement. In paragraph 44 of its decision, the FWC noted: "[The employer's] submission that [the worker] may request a FWA, but the request cannot be granted where the Agreement provides otherwise cannot be construed that an inconsistent term in an industrial instrument is a reasonable business ground."
On the specific issue of what constitutes reasonable business grounds for refusal, the FWC was clear in paragraph 44: "Refusal of the request on the basis of an inconsistency with an enterprise agreement is not a reasonable business ground. The inconsistency in fact reinforces the entitlement to the request under s.65 which in effect permits the FWA to provide for a change to hours and days of work which differs from the terms of the Agreement."
The FWC examined whether there was any actual business detriment in granting the request and found none. In paragraph 48, the FWC stated: "There is no contest that [the worker] had access to the same flexibility now being sought since 2011 until the approval of the current Agreement... There is no evidence of detriment to either [the employer] or [the worker] in granting the request. As [the employer] has the view that it cannot grant the request, an order of the Commission is appropriate in this particular matter to bring the dispute to resolution."
In its conclusion at paragraph 50, the FWC stated: "Having considered all the submissions of the parties, the evidence before me and fairness between the parties, I do find it reasonable in the circumstances to use my discretion to make an order. [The employer] contends that its rejection of the request is on reasonable business grounds; being that it cannot vary the roster in clause 18 of the Agreement by agreement between the employer and an employee. This is not a reasonable business ground to refuse the request."
The FWC ordered that the employer grant the worker's flexible working arrangement request. This allowed him to work from 6:30am to 3:00pm each Thursday during school term times, with compensating extensions to his Friday shift in week one and Monday shift in week two.
The decision confirms that when it comes to flexible working arrangement requests made under section 65 of the Act, the NES provisions take precedence over potentially conflicting enterprise agreement terms.
