“Computer says ‘no’” – employer warned to not take a tick-and-flick approach when refusing flexible work requests
Posted on March 17, 2023
In a recent decision concerning flexible working arrangements, the Fair Work Commission (FWC) has found an employer’s refusal to grant a working mother’s flexible working request to be unfair.[1] This decision and the forthcoming changes from the Fair Work Act 2009 (Cth) (FW Act) amendment (Secure Jobs and Better Pay) have imposed more rigorous criteria when responding to an employee’s request for flexible work arrangements.
Facts
The Applicant in this matter was a young mum with three kids. She was also an experienced and dedicated Advance Life Support Ambulance Paramedic having been employed by the Respondent Ambulance Victoria since 2015.
The Applicant was rostered on night shifts between 6pm and 8am however the Applicant was unable to work the normal night shift because she needed to be home until at least 6:30pm in the evening and return by 8am in the morning so that she could care for her children while her partner was at work. The Applicant made an application to the Respondent for flexibility in her shift arrangements pursuant to the Enterprise Agreement covering her employment. The Respondent rejected this application asserting that it was not able to provide shift start and finish times outside of the roster.
Decision
In finding that the Respondent did not have reasonable grounds to refuse the request the FWC was critical of the Respondent’s approach noting a failure to meet with the Applicant to discuss the proposal.
The FWC said:
“The reason advanced by AV (that “Hume 1 is currently not able to provide shift start and finish times outside the Employee’s Team roster configuration”) has all the hallmarks of Carol Beer’s drolly-delivered catchphrase in the sketch comedy TV programme Little Britain: “Computer says ‘No’”.
And
“[the Respondent] must point to costs or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work life balance.”
Changes to the law effective 6 June 2023
Currently the FW Act allows an employee to make a request for flexible working arrangements if they:
- Are a parent or have responsibility for the care of a school-age child or younger;
- Have a disability;
- Are a carer;
- Are 55 or older;
- Are experiencing violence from a family member;
- Provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires support because the member is experiencing violence from the member’s family.
An employer can refuse the request on “reasonable business grounds” such as the change being too expensive and employees have no way to appeal the decision.
However, from 6 June 2023 the FW Act will expand the scope for flexible working arrangements to include where:
- an employee Is pregnant;
- an employee, or a member of the employee’s immediate family or household, experiences family or domestic violence.
An employer will have 21 days to either approve or reject a request for flexible work arrangements. The amendments impose an obligation on the employer to discuss the request with the employee and genuinely attempt to reach agreement. The employer must provide detailed written reasons for refusing the request.
Should a dispute arise, the Act will allow employees to go directly to the Fair Work Commission (FWC) if the issue cannot be resolved in the workplace.
Key takeaways
This case provides useful insight into how the FWC may consider and determine disputes concerning flexible working arrangements moving forward. It is a reminder to employers that they cannot and should not take a tick-and-flick approach when refusing a request. Employers are encouraged to work with employees to find solutions and to ensure that they comply with their obligations under the new amendments. Importantly it is and has always been the case that the fact that other employees might also request flexible work arrangements if such an arrangement is granted to one employee is not a reasonable business ground for rejecting a flexible work request.
Please contact our workplace relations team if you require assistance with flexible work arrangements.
[1] Natasha Fyfe v Ambulance Victoria [2023] FWC 49.
