Ambulance Victoria v Natasha Fyfe

[2023] FWCFB 104

[2023] FWCFB 104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Ambulance Victoria

v

Natasha Fyfe

(C2023/413)

DEPUTY PRESIDENT CLANCY
DEPUTY PRESIDENT O’NEILL
COMMISSIONER LEE MELBOURNE, 14 JUNE 2023

Appeal against decision [2023] FWC 49 of Commissioner Johns at Melbourne on 6 January 2023 in matter number C2022/3750.

1. Ambulance Victoria (Appellant) has lodged an appeal against a decision[1] of Commissioner Johns made on 6 January 2023 (Decision) in which the Commissioner determined a dispute that had been referred to the Commission for determination under clause 11 of the Ambulance Victoria Enterprise Agreement 2020[2] (Agreement). The subject of the dispute concerned an application made by Ms Natasha Fyfe (Respondent) to the Appellant pursuant to clause 23 of the Agreement, which concerns the right to request a flexible work arrangement. The request made by the Respondent was for flexibility in her shift arrangements and in particular, for a change to her night shift arrangements. Having been refused by the Appellant, it was described in the subsequent, agreed question for arbitration as the ‘First FWA Request’.

1. Clause 23.4 of the Agreement provides that the Appellant may only refuse a request on ‘reasonable business grounds’. On 2 September 2022, the parties advised that they had agreed for the following question to be determined by the Commission:

“Does the Respondent have reasonable business grounds for refusing the First FWA Request pursuant to clause 23.4 of the Agreement?” (the question)

1. Clause 11.1(1) provides that a dispute between the Appellant and an employee about whether the Appellant had reasonable business grounds to refuse a request for a flexible work arrangement under clause 23.4 is to be dealt with in accordance with the steps in the Agreement’s dispute settlement procedure.

1. In his decision, the Commissioner answered the question in the negative. The Appellant contends that the Commissioner did not construe clause 23 of the Agreement correctly and having erred in this construction task, did not reach the correct answer. Further, the Appellant contends that it was denied natural justice in the adjudication of the dispute. It asks the Full Bench to grant permission to appeal, quash the Decision and rehear the application.

1. At the hearing on 17 April 2023, we granted the parties’ applications for permission to be represented pursuant to s 596 of the Fair Work Act 2009 (the Act) and proceeded to hear the parties both in respect of the application for permission to appeal and the substantive appeal.

Decision under appeal

1. The Commissioner observed that it was common ground between the parties that they were covered by the Agreement and that the Commission had jurisdiction to arbitrate the dispute relating to the First FWA Request by answering the agreed question.[3] The Commissioner also observed that at the time of the hearing the dispute related solely to the Respondent’s request to change her night shift arrangements so that she could commence night shift at 9.00 pm (rather than 6.00 pm) and finish at 6.00 am (rather than 8.00 am) and thus be able to care for her children while her partner was at work.

1. The Commissioner then outlined the contentions advanced that such a change in the start and finishing times would enable the Respondent to continue to undertake 64% of the night shift, allow enough time for travel both to her branch in the evening and home again in the morning and accommodate incidental overtime at the end of her shifts.[4]

1. The Commissioner documented the material filed by the parties in advance of the hearing and outlined in detail certain findings of fact that he considered were either agreed or not substantially contested in 44 sub-paragraphs.[5]

1. The Commissioner considered there was no ambiguity or uncertainty attached to the wording of clause 23.4 and that the phrase ‘reasonable business grounds’ has its ordinary meaning derived from dictionary definition of each word.[6] Having outlined submissions from the parties in relation to the legal principles to be applied to the consideration of ‘reasonable business grounds’, the Commissioner determined that he should adopt the principles outlined in The Police Federation of Australia (Victoria Police Branch) T/A the Police Association of Victoria v Victoria Police (Emery).[7]

1. The Commissioner then reproduced components of the submissions of both parties,[8] followed by the text of both clause 23 of the Agreement and s.65 of the Act. The Commissioner suggested that the major difference between clause 23 and s.65 was that clause 23 did not include the non-exhaustive list of what might be considered reasonable business grounds outlined in s.65(5A) of the Act. Notwithstanding this, the Commissioner considered that for the purposes of determining the meaning of clause 23, the “better view” was that the objective intention of the parties was to mirror the statutory scheme and it was therefore relevant to have regard to s.65(5) of the Act in determining what “reasonable business grounds” meant in clause 23.[9]

1. The Commissioner then made reference to the amendments to the Act due to take effect on 6 June 2023,[10] whereby the subsections 65(4)-(6) of s.65 will be repealed and new subsections 65A, 65B and 65C will be inserted after section 65. The Commissioner outlined the text of new subsections 65A, 65B and 65C, before purporting to summarise their effect. The Commissioner suggested subsections 65A, 65B and 65C “are not entirely new” and that “nothing in the new provisions alters either the threshold of ‘reasonable business grounds’ or the non-exhaustive list of examples.”[11] The Commissioner then made some other general observations about the new provisions.

1. The Commissioner concluded the Respondent had the requisite 12 months of continuous service, had made an application as required by the terms of clause 23.2 of the Agreement, qualified in terms of the ‘Specified Circumstances’ as a parent of a child who was school age or younger (per clause 23.3(a) of the Agreement) and was therefore entitled to make an application for a change to working arrangements as a flexible work arrangement.[12] The Commissioner also stated he was satisfied that in agreeing to clause 23 in the Agreement, the Appellant had intended that its employees should have a genuine and substantive right to seek alternative flexible working arrangements and that such arrangements should be accepted unless they could be refused because of adverse effects in the workplace.

1. Relying on Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council (Brimbank),[13] the Commissioner considered the importation of the standard of reasonableness necessarily connotes the weighing of any adverse impact against the personal circumstances and legitimate work/life balance aspirations of the employee.[14] Further, the Commissioner considered that the use of the word “reasonable” in clause 23 imports a requirement that there be some form of balancing[15] and that there was no evidence that the Appellant had considered how it might benefit from allowing the Respondent to work flexibly.[16]

1. The Commissioner then reviewed the request that had been made by the Respondent in the following terms:

• it should always have been understood that the Respondent was offering to work as a “flexible spare”;

• the “business” was the business of the Appellant conducted in the “Hume 1” Ambulance Service Area because resourcing decisions were made at that level;

• it should properly have been seen as one available for review by the Appellant, with the Respondent herself having proposed the duration of 12 months;

• its basis (i.e. the need to look after young children when the Respondent’s partner was unable to) necessarily meant that the Appellant could have accepted the request and applied a review period; and

• the Appellant complied with its obligation to provide reasons for its refusal in writing (clause 23.5 of the Agreement) and did so within 21 days (clause 23.6). [17]

1. Having noted the Respondent’s request was rejected, the Commissioner stated:

“[75] What is evident from the chronology of events is that there was no genuine attempt to reach an agreement with the Applicant about her FWA request. It will be noted that discussions with an employee and genuinely trying to reach agreement will be expressly provided for when the new provisions become operational.

[76] Although clause 23 does not contain the express reference to discussions and genuinely trying to reach agreement (as is proposed in the new legislation or in clauses that were before Commissioner Wilson in Emery and Deputy President Bell in Azmi), it is difficult to see how I can make a finding that AV [Appellant] had reasonable (i.e. affected by reason and sound judgment) business grounds if it did not have a discussion with Ms Fyfe and seek to reach an agreement with her. AV acted unreasonably, and that unreasonableness infected its decision.”[18]

1. The Commissioner further concluded that the Appellant should have tried to genuinely reach agreement with the Respondent and “Absent that attempt, any purported reasonable business grounds were vitiated by the failure to do so.”[19]

1. Proceeding on the basis that he was required to apply the principles to be drawn from Emery, the Commissioner stated he was satisfied:

• the request made by the Respondent was a request for a flexible working arrangement;

• the Appellant complied with its obligation to provide a written response (albeit the reasons advanced on 9 March 2022 were “thin”);

• the Appellant communicated the business grounds that it asserts were reasonable on 9 March 2022;

• the intent of clause 23 was to provide for flexible working arrangements; and

• the Appellant did not assert either that the cost was the reason for the refusal or that there were costs “over and above what may be regarded as inevitable small adverse impacts.”[20]

1. The Commissioner determined:

• he was to consider and determine whether, on an objective basis, the Appellant had reasonable business grounds for refusing the Respondent’s request;[21]

• that while the Appellant was required, on 9 March 2022, to “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”,[22] it did not do so;[23]

• the parties had clearly intended for clause 23 of the Agreement to operate consistent with the relevant provisions in the Act so it was relevant to also have regard to the matters listed in section 65(5A) of the Act;[24]

• the explanation the Appellant provided to the Commission as to why shift and finish times could not be provided outside the Respondent’s Team roster configuration was not explained to the Respondent when the request was rejected;[25] and

• the best explanation of the alleged problems arising from the Respondent’s proposal to change start and finish times on night shift was provided by Mr Weinert from the Appellant’s roster department, and yet Mr Weinert only became involved in the matter on 11 August 2022, such that the problems he had identified could not have been in the mind of the Respondent’s decision maker on 9 March 2022.[26]

1. Suggesting that the matters advanced at the hearing as reasons for the refusal rose no higher than ‘purported reasons’, the Commissioner made a series of findings about them. The Commissioner concluded, having regard to the request made by the Respondent and the Appellant’s business needs, that there was no reason why the Appellant could not have accepted the request on the basis that the request would:

• treat the Respondent as a ‘flexible spare’;

• look to place the Respondent at any time at any one of 11 different branches;

• first look to fill the 14-hour spot using employees on ordinary time, spares or flexible spares on a rolled-up rate who could work for 14-hours;

• then seek to fill the 14-hour spot by paying overtime, to those on the overtime list or by seeking volunteers to undertake overtime; and then (as a last resort);

• utilise the Respondent to fill at least 9-hours out of the 14-hour spot (rather than leaving it vacant in its entirety).[27]

1. While acknowledging this process would not guarantee the Respondent a night shift, the Commissioner asserted that if the Appellant was to exhaust all other options to fully fill a shift, such an arrangement would address at least 64% of its operational needs, partially meet community expectations, and result in the Respondent being able to balance her work and family needs. The Commissioner opined that not to do so would go “against common sense.” The Commissioner concluded that it was “obvious that more could have been done to reach a mutually satisfactory outcome but was not” and consequently, this rendered the Appellant’s decision unreasonable. [28]

1. The ultimate conclusion of the Commissioner was that at the time the Appellant refused the Respondent’s request for a flexible work arrangement, it did not have reasonable business grounds for doing so.[29]

The appeal grounds

1. Thirteen grounds of appeal are advanced by the Appellant in the Form F7 – Notice of Appeal (Form F7):

1. In answering the Question in the negative, the Commissioner did not arrive at the correct decision/answer by reason of errors in the reasoning pathway, namely by determining clause 23 of the Agreement required the Appellant to genuinely try to reach agreement with the Respondent before it determined the request for a flexible work arrangement.

1. By reason of the error identified in appeal ground 1, the Commissioner fell further into error in his construction task (of clause 23) by determining at [80] of the Decision that absent any attempt to genuinely try to reach agreement (which is denied by the Appellant), any ‘purported reasonable business grounds were vitiated by the failure to do so’.

1. The Commissioner fell into jurisdictional error, in that he denied to the Appellant natural justice in relation to his finding that clause 23 of the Agreement required that the Appellant genuinely try to reach agreement before determining the request in circumstances where:

a)   the Respondent, via her representative, did not advance her case on that basis and did not make any submission to that effect; and

b)   the Commissioner did not, during the oral hearing, squarely put to the Appellant or the Respondent that the Appellant was required by clause 23 to genuinely try to reach agreement with the Respondent in relation to her request.

1. In circumstances where the Commissioner correctly determined that clause 23 of the Agreement did require the Appellant to genuinely try to reach agreement with the Respondent (which is denied), he fell into error in his evaluation of the established facts where, in consideration of the entirety of the request made by the Respondent (8 shift changes), and the established facts as to the engagement between the Appellant and the Respondent in the period February 2022 to 9 March 2022 (rejection of the request) or 3 June 2022 (end of the grievance procedure) (at [21](oo) of the Decision), he determined the Appellant had not genuinely tried to reach agreement (at [75] of the Decision).

1. The Commissioner erred upon his determination on the established facts that:

a)the Appellant had acted unreasonably in its consideration of the request made by the Respondent (at [76] of the Decision); and

b)such unreasonableness ‘infected its decision’ (to refuse the request on reasonable business grounds) (at [76] of the Decision); and

c)more could have been done to reach a mutually satisfactory outcome, but was not, and therefore the Appellant’s decision was unreasonable (at [102] of the Decision).

1. The Commissioner erred in his construction of the phrase ‘reasonable business grounds’ contained in clause 23 of the Agreement because he found that the Respondent’s availability for a shortened nightshift was ‘better than nothing’ (at [100](b) of the Decision), and therefore the Appellant did not have reasonable business grounds to refuse it.

1. The Commissioner erred where he found there was a requirement imposed upon the Appellant to balance the employee’s circumstances against the grounds advanced by the employer (at [50] of the Decision).

1. The Commissioner erred in finding at 100(a) of the Decision that the Respondent’s request to work shortened/reduced nightshifts, would not result in an ‘unfunded shift’ as that term was, and is, defined by the Appellant and the unchallenged evidence before the Commission to that effect.

1. In the alternative to ground 8 above, the Commissioner erred in his construction and assessment task in relation to clause 23 of the Agreement where:

a)   he exclusively focused on the Respondent’s contention that she could work as a spare or flexible spare on a reduced hour night shift; and

b)   by that focus in (a) above, the Commissioner was diverted from the primary task of determining the Appellant’s reasonable business ground for refusal of the request, namely that the Respondent’s proposal constituted her working a shortened and therefore unfunded nightshift.

10.The Commission erred in making a finding of fact that the Respondent had, in the request, sought to work as a ‘spare’ or ‘flexible spare’ where, on the evidence, to work as a ‘spare’ [of any kind] by definition required that the Respondent be available to work the entire rostered shift, not a reduced night shift (5 hours less).

11.The Commissioner erred at [83(e) of the Decision] where he found that the Appellant did not assert that cost was the reason for the refusal of the request in circumstances where:

a)   there was accepted evidence regarding the cost impact to the Appellant; and

b)   the Appellant contended in oral and written submissions that cost was a reason for the refusal.

12.The Commissioner erred in law in admitting evidence, over the formal objection of the Appellant, that the Respondent was prepared to work as a ‘flexible spare’ where that ‘flexibility’ was not notified in her 21 February 2022 request (see [57] and [58] of the Decision) and so was not, and could not, be the subject of consideration/refusal by the Appellant in its rejection of the request.

13.The Commissioner erred when he made a finding, having regard to the reduced hours nightshift, that the Respondent had not requested that the Appellant create a special roster for her.

Public interest grounds

1. The Appellant contends it is not necessary for the Commission to be satisfied that it is in the public interest to grant permission for this appeal to proceed. However, the Appellant nonetheless submitted that the public interest is enlivened in the circumstances of this matter and outlined a number of grounds it contends are public interest grounds in the Form F7.

1. Firstly, the Appellant submitted that as the correctness standard applies to the appeal it is strongly arguable that the Decision is attended by sufficient doubt such as to warrant reconsideration so the Full Bench may determine for itself whether the ultimate outcome (i.e. the answer to the question) was correct.

1. Secondly, the Appellant submitted it is in the public interest, in relation to a large state-wide emergency services provider employing 6,000 operational staff, that the manner in which clause 23 of the Agreement operates and the granting/refusal of a request for a flexible work arrangement is both clear and legally correct.

1. Finally, the Appellant submitted it is strongly arguable the Appellant was denied natural justice constituting jurisdictional error.

Appellant’s Submissions

1. The Appellant addressed grounds 1, 2 and 9 by asserting the Appellant had provided reasons for the refusal of the request on 28 February 2022, 9 March 2022 and 29 March 2022 focussed upon the manifest difficulties associated with the shortened night shift requests and included consideration of the fact that such shifts were unfunded, the impact of roster variations which did not meet operational demand and the inability to provide shifts that did not align with the Appellant’s shift configuration.

1. The Appellant also outlined evidence in support of the ‘reasonable business grounds’ that it contends was before the Commissioner, as follows:

• the Appellant’s resource model determined that the appropriate crew configurations required at the Kilmore branch to meet patient needs required dual officer crewing;

• the Respondent’s request posed real difficulties to the established shift rostering system, created funding challenges and would impact other paramedics in her team;

• the bespoke night shift times would have the effect of creating a vacancy of three hours at the start of the night shift and two hours at the end of the night shift, during which time patients could not be transported during these periods unless another ambulance attended to assist because ambulances can only transport patients when they have two paramedics onboard;

• the bespoke night shift times would cause inefficiencies and operational impacts; and

• the Respondent would be unable to fulfil her role as a Clinical Instructor, as she could not be rostered with a student paramedic given the oversight responsibility that involves.

1. The Appellant contended the Commissioner erred in the construction task in determining that the phrase ‘reasonable business grounds’ in clause 23 of the Agreement imposed an obligation on it to genuinely try and reach agreement with the Respondent before it rejected her request on any basis. The Appellant submitted clause 23 does not contain, whether expressly or impliedly, any such obligation and instead directs attention to an objective assessment of the business grounds themselves, not whether there has been a discussion about those grounds before the request is rejected. The Appellant argues that the Commission imposed, or overlaid, an obligation on it that is not otherwise contained in clause 23 and that if the parties had intended that there be consultation or genuine engagement before the Appellant was to make its own assessment of ‘reasonable’ business grounds, they would have said so.

1. The Appellant submitted that in appearing to find that a ground for refusal could not be reasonable if it did not first have a discussion with the Respondent and try to reach agreement with her, the Commissioner misunderstood the operation of the reasonableness criterion. The Appellant argued that reasonableness imposes a duty to objectively assess the asserted business grounds and that a ground may be entirely reasonable on a financial, accounting or operational basis without any discussion with an applicant for a flexible work arrangement affecting that assessment of ‘reasonableness’.

1. The Appellant submitted that the Commissioner had conflated differing and stand-alone obligations without a textual basis and proffered that any assessment as to ‘reasonableness’ is an inquiry requiring an evaluation of the substantive ground for the refusal, whereas an obligation to discuss or consult is a procedural requirement. Further, the Appellant argued against imposing an obligation to consult in circumstances where the parties did not include such words in their Agreement.

1. The Appellant suggested there was a sound basis for us to undertake the construction task. The Appellant asserts there was no express or implied obligation imposed on it to genuinely try to reach agreement before rejecting the request on reasonable business grounds and consequently, the Commissioner fell further into error when he found that the Appellant acted unreasonably, the unreasonableness infected its decision[30] and the purported reasonable business grounds were vitiated by its failure to genuinely try and reach agreement.[31] The Appellant submitted that those erroneous consequential findings infected and impaired the Decision and this compels us to undertake the reconsideration of the Question so as to reach the correct answer.

1. In the alternative, the Appellant submitted that in the event we were to find such an obligation was attached to, or was subsumed in, the phrase in clause 23.4 of the Agreement, it did in fact genuinely engage with the Respondent and try to reach an accommodation in relation to her request and its eight elements. The Appellant submitted it communicated with the Respondent about the ‘night shift roster change’ and the difficulties associated with it in respect of the Hume 1 region and that before the request was rejected on 9 March 2022, the Respondent had acknowledged, on 28 February 2022, that the Appellant did not have the night shift resources in that region. The Appellant argued that it subsequently reached agreement on, and offered the Respondent seven of the eight changes to her roster that were in her request and that the Commission was required to consider the request in its entirety and why in fact it was refused.

1. The Appellant asserted the request was refused because of the request for the shortened night shift roster and that there were reasonable business grounds for that refusal.

1. As to ground 3, the Appellant submitted a party to a dispute notified under an agreement, and upon the invocation of s.739 of the Act, is to be afforded natural justice in the determination of the dispute and a denial of natural justice is a jurisdictional error and, in many cases, this will warrant a rehearing. The Appellant submitted that in this case, it was never argued on the Respondent’s behalf that:

• the phrase ‘reasonable business grounds’ in clause 23.4 of the Agreement required it to genuinely try and reach agreement with the Respondent before it rejected her request; or

• the Appellant had not tried to genuinely try and reach agreement with the Respondent before it rejected the request; or

• the Appellant had acted unreasonably in its interactions with the Respondent before it reached a determination to reject the request.

1. The Appellant argued it was never made aware that the Respondent intended to prosecute her case arguing these things. It asserted the Commissioner did not place it on notice that he intended to adopt this construction of clause 23.4 of the Agreement, such that the resulting finding would be one of non-compliance with these obligations. The Appellant submitted it was not given an opportunity to call any evidence, or advance any argument, to confront what it asserted was a novel construction of clause 23.4 of the Agreement. It contended the Commissioner did not rely upon any established authority to find that the phrase contained these obligations and therefore his construction of clause 23.4 could not have been anticipated. The Appellant submitted that this construction point was not ‘opened’ upon or the subject of any submission. Nor did the Commissioner bring it to the attention of the parties so they could make submissions and be heard in relation to it. The Appellant submitted there was a denial of natural justice because the Commissioner denied the Appellant an opportunity to be heard in relation to his interpretation of clause 23.4 of the Agreement before he made findings of unreasonable behaviour and by doing so, fell into jurisdictional error.

1. Addressing the Respondent’s position, which it asserted was that any denial of natural justice was immaterial and would not have affected the ultimate outcome, the Appellant submitted it had no opportunity to be heard on the Commissioner’s findings that it should have tried to genuinely reach agreement with the Respondent and absent an attempt to do so, any purported reasonable business grounds were vitiated. The Appellant submitted that had it been told by the Commissioner this was an issue, it would have taken the Commissioner to the conversations and emails outlined in the unchallenged evidence of Mr Timothy Clancy (Senior Team Manager) and Mr Edward Liu (Kilmore Team Manager (Acting)). [32] In this regard, the Appellant submitted that as there was unchallenged evidence from Mr Clancy and Mr Liu that it had consulted with the Respondent and discussed the nature of her request and whether it was likely to be accepted, there was no basis to find it had been peremptory (and therefore unreasonable) in its refusal of the request. The Appellant asserted that almost as soon as the request was made, it communicated with the Respondent that there were likely problems arising with the night shift rostering times and she had acknowledged this.

1. As to grounds 6, 8, 10, 11, 12, 13, the Appellant submitted that certain errors in the reasoning pathway require identification so that we apprehend the correct or unique outcome to the Question. In this regard, the Appellant submitted that we should find the following facts/matters bear upon the final determination of the dispute and support a finding that reasonable business grounds existed:

a)in her written application, the Appellant did not request to be utilised as a flexible spare (Ground 10);

b)the proposed night shift was an unfunded shift (Ground 8);

c)there was a cost impact to the Appellant and it arose in the context of ‘unfunded shifts’ (Ground 11); and

d)the Respondent had made a request for a special night shift roster designed specifically to meet her needs (Ground 13).

1. In relation to ground 6, the Appellant submitted that upon reconsideration of the agreed question (whether the Appellant has reasonable business grounds to refuse the request), we should find that the consideration that a shortened night shift was “better than nothing” did not bear upon the final determination of the dispute.

1. The Appellant submitted that permission to appeal should be granted. It contended the public interest is enlivened in respect of the ‘construction question’ and the natural justice question. Accordingly, it argues the appeal should be upheld, the Decision quashed and that in applying the correctness standard, we should answer the question as to whether the Appellant has reasonable business grounds for refusing the request pursuant to clause 23.4 of the Agreement in the affirmative.

Respondent’s Submissions

1. In addressing grounds 1, 2 and 9, the Respondent submitted a fair reading of the Decision as a whole discloses that the Commissioner did not determine the dispute on the footing that the Appellant had not genuinely tried to reach agreement before determining Ms Fyfe’s request. The Respondent submits that it is clear that from paragraph [84] of the Decision that the Commissioner identified what he was required to determine and then proceeded to resolve the question.

1. The Respondent submitted there was nothing exceptional or irrelevant about the consideration the Commissioner gave to his finding that there was an absence of discussion with Ms Fyfe. The Respondent argued the Commissioner’s finding that the absence of discussion went to the reasonableness of the Respondent’s conduct in refusing the request was in keeping with authority and paragraph 269 of the Explanatory Memorandum to the Act, together with the example in paragraph 270, both of which treat discussions between an employer and a requesting employee “rather than simply refusing the request” as going to reasonableness. The Respondent also argued that the closeness in subject matter and text between clause 23 of the Agreement and s.65 of the Act is obvious and thus the Explanatory Memorandum is relevant context. However, the Respondent maintained the Commissioner did not misconstrue clause 23.4 of the Agreement by importing a legal obligation by construction. Rather, the Commissioner considered it as going to the reasonableness of the Appellant’s conduct in refusing the request. Even if he did, the obligation did not vitiate the Decision because the Commissioner had considered the reasonable business grounds and resolved the question against the Appellant.

1. The Respondent also asserted that the Appellant’s Flexible Working Arrangements policy[33] recognised agreement making as part of the form of flexible working arrangement known as “individual rostering”, which in turn involved the development of a mutually agreeable pattern of work which might consist of working the same days/times each week or a variable pattern of work or shifts over a roster cycle.[34]

1. In relation to ground 3, the Respondent argued that the Appellant’s submission that it had been denied natural justice in respect of the finding that it had not genuinely tried to reach agreement incorrectly assumed that this ‘genuinely tried finding’ had an important bearing on the final disposition of the dispute.

1. The Respondent submitted that when the Commissioner’s reasons are read as a whole, it was evident that the target of the Commissioner’s commentary in paragraphs [76] and [80] of the Decision was the Appellant’s process and inflexibility, not a dispositive finding about whether it had reasonable business grounds. Further, it was submitted that the Commissioner’s observation that the Appellant should have tried to genuinely reach agreement with the Respondent was the culmination of a discussion about its refusal of her request and the reasons it gave for doing so and viewed in that light, the Commissioner was observing that rather than simply refuse the request, the Respondent could have tried the arrangement and then reviewed it because the request was for a 12 month period. The Respondent submitted that the Commissioner’s observations in the commentary in paragraphs [76] and [80] of the Decision did not amount to the imposition of a legal obligation by a process of construction and nor did it overtake the analysis that commenced from paragraph [83], at which point the Commissioner had turned to whether the Appellant had reasonable business grounds. The Respondent argues this much was plain from what the Commissioner outlined on and from paragraph [84].

1. The Respondent argued that it fell to the Appellant to demonstrate ‘material’ jurisdictional error arising from the postulated denial of natural justice[35] and that it must persuade us that such a denial, if that is what happened, could realistically have resulted in a different decision (i.e. an affirmative answer to the agreed question). The Respondent submitted that a bare or merely technical breach of procedural fairness is not enough[36] and that the burden of what it labelled as the “could” question (factual, legal and persuasive) is borne by the Appellant.[37] The Respondent argued that given the reasons and conclusions expressed in [100]-[105] of the Decision, discharging that burden is unlikely, with those reasons and conclusions the pathway to the negative answer the Commissioner gave to the question and sitting independently from the complaints the Appellant makes about the asserted procedural defects.

1. As to grounds 6, 8, 10, 11, 12, 13, the Respondent submitted they challenged various conclusions of the Commissioner in the dispositive section of the Decision. The Respondent submitted the Appellant’s outline of submissions grouped these appeal grounds and addressed them in a ‘rolled up way’ that failed to expose the basis for the errors asserted. The Respondent contended that the matters these grounds relied upon merely bore upon the final determination of the dispute and this was no more than a bare invitation for us to overrule the Commissioner and substitute our own view. The Respondent submitted that the matters advanced by the Appellant outlined at [38] above do not expose error. In particular, the Respondent submitted:

a)no error was identified with respect to the way that the Commissioner addressed the Respondent’s written application to be utilised as a flexible spare;

b)the Appellant’s flexible hours policy expressly comprehended an agreed pattern of work as a type of flexible working arrangement and the Commissioner had accepted evidence supporting a finding that Appellant had understood that under the Respondent’s request, she would be working as a “spare”.[38]

c)the reference in the Appellant’s submission that the proposed nightshift was an unfunded shift did not identify any relevant error at all because the Commissioner had specific regard to the Appellant’s arguments pertaining to unfunded nightshifts and dealt with them in a context that recognised the Respondent’s ability to work as a “spare”, and the Appellant’s understanding that she could.

d)the asserted cost impact on the Appellant said to have arisen in the context of “unfunded shifts” was an invitation to read the Commissioner’s reasons very selectively.

e)it was entirely unremarkable that the Respondent’s shift request met her needs because that is the point of flexible working arrangements, which under the Appellant’s Flexible Working Arrangements policy expressly contemplate individual rostering.[39] In any event, there was evidence which demonstrated that the request did not do so in a way that was exclusive of the Appellant’s operational needs, as was apparent from the extract of Ms Fyfe’s evidence at paragraph [56] of the Decision.

1. Turning to the inability asserted by the Appellant when responding to the request, the Respondent submitted this was rejected by the Appellant’s own Flexible Working Arrangements policy because the policy commits to achieving a balance between work and life and contemplates “individual rostering”. The Respondent also drew upon the conclusions of the Commissioner at [100]-[101] of the Decision, which it said demonstrated the contribution the request made to operational efficiency and lower operational cost by allowing Ms Fyfe to fill shifts as a ‘flexible spare” across the Hume region (rather than work exclusively from her base at the Kilmore branch). The Respondent asserted that these shifts would otherwise not have run or would have been filled by another paramedic working overtime.

1. The Respondent submitted the basis of the request, if granted, was that she would be allocated work as a ‘spare” at any branch within the Hume region and she asserted there was evidence before the Commissioner that there were 35 unfilled night shift vehicles in March 2022, 12 in April 2022, 23 in May 2022, 21 in June 2022, 31 in July 2022, and 25 in August 2022. The Respondent submitted the factual findings upon which the Commissioner relied to conclude that the request could be accommodated, according to the manner in which the Appellant usually deployed paramedics on flexible work arrangements, were not impeached by the Appellant and these findings directly supported the answer the Commissioner gave to the question. The Respondent submitted there was no relevant appealable error in the conclusions reached by the Commissioner about how the request could be accommodated, and therefore the conclusion that the Appellant lacked reasonable business grounds was inevitable.

1. The Respondent submitted that the basis upon which permission is sought on public interest grounds substantially re-agitated arguments raised by the grounds of appeal and therefore, the Appellant’s Outline of Submissions took the subject of permission no further. The Respondent argued that the fate of permission rose and fell upon whether the Appellant had demonstrated vitiating error of a kind and to a degree that would result in the negative answer the Commissioner gave to the question becoming affirmative. The Respondent submitted that because the Appellant had not, permission must be refused and the appeal dismissed.

Permission to appeal

1. The dispute resolution procedure in clause 11 of the Agreement provides that an appeal lies to a Full Bench of the Commission, with permission, against a determination of a single Member.[40] Therefore, the general position applies, which is that a person aggrieved by a decision of the Commission may appeal that decision under s 604 of the Act, but only with the permission of the Full Bench. Subsection 604(2) of the Act requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so. Permission may otherwise be granted under s 604(1) on discretionary grounds.

Consideration

1. The Appellant submits the correctness standard applies in respect of the appeal, the Decision is incorrect and there is only one, unique answer to the question agreed by the parties. The Appellant submits that as s.739(5) of the Act proscribes the Commission from making a decision that is inconsistent with the Agreement, we must determine whether the Commissioner’s answer to the question was correct. If we conclude that it was wrong, the appeal must be upheld and our duty is to correct this error by reconsidering the substantive dispute and substituting our own conclusion concerning the proper construction of the Agreement.[41]

1. The Respondent submits the Commissioner was asked to make an order that the Appellant did not have reasonable business grounds to reject the request. The parties asked the Commissioner to deal with the dispute by means of determining the agreed question, and the Commissioner dealt with the dispute in that manner. Further, it was submitted by the Respondent that the Commissioner expressed his determination by expressing what he considered to be “appropriate” to determine the dispute and that the “correctness standard” does not apply to the performance of these functions. In this regard, the Respondent submits the phrase “reasonable business grounds” is undefined by the Agreement and viewed in context, denotes the existence (or otherwise) of a state of affairs, as distinct from a standard to be met. The Respondent contends the word “reasonable” in the phrase “reasonable business grounds” demonstrates that business grounds justifying refusal of the particular flexibility which is sought must objectively exist. The Respondent asserts that in the face of a dispute about whether they do, the Commission is obliged to determine the dispute according to the procedures stipulated by clause 11 and the standards prescribed by s.577 and s.578 of the Act.

1. The Respondent submits a determination that there are (or are not) “reasonable business grounds” for refusing a particular proposal for change allows for the making of value judgments by the Commission that are essentially practical. It is contended this involves a weighing of any adverse impact in the workplace against the personal circumstances and legitimate work/life balance aspirations of the employee that grounded their request and that by its nature, resolution of that question tolerates different, albeit legitimate, opinions rather than requiring one unique outcome. The Respondent submits that where clause 23.4 is concerned, the question is answered in a dispute resolution setting in which the Commission exercises a reasonably unconfined jurisdiction to determine the dispute. The Respondent argues that the House v King standard of appellant review applies[42] and accordingly, it falls to the Appellant to demonstrate vitiating error according to those principles.

1. The approach of a Full Bench to the determination of an appeal depends on the nature of the decision below. In the present case, the Decision was concerned with determining the question of whether, pursuant to clause 23.4 of the Agreement, the Respondent had reasonable business grounds for refusing the First FWA Request. The question is disputed, and the Commission is authorised by clause 11 of the Agreement to determine the answer.

1. In Minister for Immigration and Border Protection v SZVFW (SZVFW),[43] Gageler J held that it is not sufficient to justify departure from the correctness standard of appellate review that a conclusion of a primary judge has been arrived at by a process of reasoning which can be characterised as evaluative.[44] His Honour further outlined:

“The course of High Court authority since Warren v Coombes has accordingly proceeded on a consistent understanding of how the line of demarcation is to be drawn between those of a primary judge’s conclusions which attract the correctness standard of appellate review reaffirmed in that case and those which attract the deferential standard applicable to appellate review of an exercise of judicial discretion. Without excluding the potential for other considerations to affect the standard of appellate review in a particular category of case, the understanding provides a principled basis for making at least the principal distinction.

The line is not drawn by reference to whether the primary judge’s process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable.”[45]

1. In AMA (Victoria) Ltd v Monash Health (Monash Health),[46] the subject of the appeal to the Full Bench was the determination at first instance as to whether there was compliance with a term of the applicable enterprise agreement expressed in the following terms:

“21.5 Assignment of Work

(a) The Health Service will ensure that the type and volume of work assigned to the Doctor is reasonable with regard to the Doctor’s skills, abilities, capacity and availability to perform.

(b) In considering the work to be assigned to the Doctor, the Health Service must identify the level and type of administrative support available to the Doctor, and must ensure that appropriate levels of administrative support are provided.”

(our emphasis)

1. The Full Bench, relying on SZVFW, determined the following:

“The determination of whether a party has complied with, or contravened, a provision of an enterprise agreement does not involve the exercise of a discretion. In this case, although the question of compliance with clause 21.5(a) requires an evaluative judgment to be made by reason of the clause being concerned with the reasonableness of the assignment of work, it nonetheless demands a “unique outcome”. The correctness standard therefore applies to this appeal.”[47]

(reference omitted)

1. Determining the question of compliance with or contravention of clause 23.4 of the Agreement involves the same considerations. While a process of evaluative reasoning is required because the clause is concerned with a refusal based only on reasonable business grounds, answering the question “Does the Respondent have reasonable business grounds for refusing the First FWA Request pursuant to clause 23.4 of the Agreement?” demands a “unique outcome”. As such, the correctness standard applies to this appeal. This is confirmed by s.739(5) of the Act, which has “the relevant effect of prohibiting the Commission from making a decision that is inconsistent with the agreement”.[48]

1. The Appellant submitted that if we are satisfied the correctness standard applies, we must find there was error in the ‘construction task’ in terms of how the Commissioner went about answering the question and then we must proceed to resolve the dispute and find the unique answer on the evidence that was before the Commissioner.

1. The Respondent argued that even if the correctness standard applies, the Appellant still has to satisfy us that the appropriate answer to the question is “Yes”. The Respondent submits that the Commissioner’s assessment of the reasonable business grounds issue set out from paragraph [83] of the Decision onwards overtook his earlier analysis of the issue of whether there was an obligation to genuinely try and reach agreement before refusing the request. The Commissioner concluded from this analysis that the answer was “No”.

1. The Commissioner acknowledged in paragraph [76] of the Decision that clause 23 does not contain an express reference to discussions or a requirement to genuinely try to reach agreement. We note, however, that the Appellant has a Flexible Working Arrangement procedure (FWA Procedure)[49] and that the FWC Procedure outlines that during the process of an employee applying for a flexible working arrangement:

“AV will endeavour to engage in discussion with employees to reach an agreement that balances the needs of both the employee and AV’s operational or business requirements.”[50]

1. The Commissioner inserted consideration of whether there had been discussion into his decision-making process. This is evident from his statement “it is difficult to see how I can make a finding that AV had reasonable (i.e. affected by reason and sound judgment) business grounds if it did not have a discussion with Ms Fyfe and seek to reach an agreement with her”.[51]

1. However, whether or not there are discussions regarding a request for a flexible work arrangement advanced under clause 23 of the Agreement does not form part of the assessment of whether there are reasonable business grounds for the purposes of clause 23.4. It is clear the Commissioner’s conclusion that the Appellant had acted unreasonably took hold, as evidenced in his additional comments in [80]-[82], and we consider it permeated his assessment of whether the Appellant had reasonable business grounds to refuse the request. We therefore accept the misconstruction proposition advanced by the Appellant.

1. An application for permission to appeal a decision involving the outcome of a single request for a FWA made to an employer, in circumstances where the associated legislative provisions have since been superseded by amendments to the Act, would not generally result in us being satisfied that the public interest is enlivened. However, because this is an appeal to which the correctness standard applies and an incorrect decision would subject the Appellant to an injustice, we are persuaded to grant permission to appeal.

1. In Monash Health, it was stated by the Full Bench:

“It is not sufficient in an appeal to which the correctness standard applies for the appellant merely to point to alleged errors in the reasoning process or findings of subsidiary fact in the decision under appeal, as the AMA has done here. Rather, the appellant must advance a positive case as to why a different answer to the question posed for determination is the legally correct answer.”[52]

1. It is therefore useful to restate the question:

“Does the Respondent have reasonable business grounds for refusing the First FWA Request pursuant to clause 23.4 of the Agreement?”

1. In this appeal, the Appellant must convince us the answer to the question is “Yes” and we must determine whether the Respondent had reasonable business grounds for refusing the Applicant’s request. Having granted permission to appeal, we have determined that the appeal should be dismissed because the correct decision was reached.

1. As to what constituted reasonable business grounds in this matter, both parties addressed the relationship between s.65 of the Act and clause 23 of the Agreement and approached the dispute on the basis that there was a connection between these two provisions. The Respondent suggested clause 23 could be construed having regard to the statutory provisions in s.65,[53] while the Appellant submitted the parties were cognisant of the statutory definition of the term ‘reasonable business grounds’ when negotiating the Agreement.[54]

1. We consider the terms of clause 23 of the Agreement demonstrate that at the time the Agreement was made, the parties have previously agreed to incorporate some specific aspects of the s.65 provisions then in operation. For instance, the parties consciously decided to provide that a dispute about whether the Appellant has reasonable business grounds to refuse a request for a flexible work arrangement under clause 23.4 was to be dealt with under the dispute settlement procedure in clause 11 of the Agreement, which extends to the exercise of arbitral powers by the Commission. There is also reference to ss.65(4) and 65(6). Accordingly, we are prepared to infer that the parties intended that regard could be had to the provisions of s.65(5A) (as applicable at the time of the request). We note the matters listed therein were not an exhaustive list of ‘reasonable business grounds’, but included 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;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;

(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; and

(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.” (s.65(5A) matters)

1. We also consider that the parties intended to have regard to the FWA Procedure referred to above, and the Appellant’s Flexible Working Arrangements policy (FWA Policy),[55] referenced by the Respondent as part of her submissions, when a request for a flexible working arrangement (FWA) was made. The FWA Policy and FWA Procedure were produced to the Commission by the Appellant through Mr Michael Atkinson, its “Area Manager Hume 1”. Mr Atkinson’s evidence was that the FWA Policy and FWA Procedure set out the process for making and criteria for determining requests for a flexible working arrangement (FWA).[56]

1. As regards the FWA Policy, we note in particular:

a)the stated commitment of the Appellant to providing an inclusive and flexible workplace and acknowledgement of the importance of flexible working arrangements for employees to fulfil a balance of their work, life and family responsibilities, whilst balancing operational and business requirements;

b)there is no automatic entitlement to a FWA;

c)FWAs are negotiated to balance the reasonable operational and business requirements of the Appellant and the personal needs of its employees;

d)FWAs are a temporary variation for a defined period up to twelve months;

e)each FWA request will be considered on a case by case basis;

f)where possible, FWAs should start and finish according to a roster cycle for Operational staff;

g)requests for FWAs can be denied or negotiated on reasonable business grounds, with due consideration to both operational and business requirements and employee circumstances;

h)FWAs may include Individual Rostering, which involves the development of a mutually agreeable pattern of work which may consist of working the same days/times each week or a variable pattern of work over a roster cycle, i.e. the type of shifts worked;

1. in addition to eight defined FWA arrangements, employees may suggest other arrangements to be considered in accordance with the FWA policy;

j)reviews take place after three or six months depending on the length of the FWA, and at the end of the twelve month period; and

k)items to consider when conducting a review include service delivery requirements, problems that have arisen, budget and the employee’s overtime pattern.[57]

1. In relation to the FWA Procedure, the following features may be noted:

a)it outlines that the Appellant has committed to providing a work environment that enables employees to optimise their contribution to the organisation, recognising the importance of flexible working arrangements and family friendly work practices in maintaining a diverse, adaptive and high performing workforce;

b)employees have a right to make a request and have it fairly considered by the Appellant;

c)there is no automatic entitlement to FWAs;

d)FWAs are negotiated to balance the reasonable operational and business requirements of the Appellant and the personal needs of employees;

e)employees are required to consider the service demands of the business when requesting FWAs;

f)line managers are required to duly and fairly consider and understand the needs of the employee;

g)the temporary nature and defined period of a FWA, outlined in the FWA Policy, is confirmed, as is the aspiration that FWAs start and finish according to a roster cycle for Operational staff;

h)there is confirmation of the FWA Policy imperatives that requests for flexible working arrangements can be denied or negotiated on reasonable business grounds, with due consideration to both operational and business requirements and employee circumstances;

1. FWAs include Individual Rostering and eight other defined arrangements, with employees able to suggest other arrangements for consideration;

j)all requests are to be assessed against the reasonable operational or business requirements;

k)employees should discuss the rationale, intent and/or purpose of their request with their relevant line manager prior to submitting a FWA request in order to reach a shared understanding for both parties of the intended application;

l)the Appellant is to endeavour to engage in discussion with employees to reach an agreement that balances the needs of both the employee and its operational or business requirements; and

m)the Review process and items to consider on review as per the FWA Policy are confirmed.

1. The FWA Policy and FWA Procedure provide the parties with a framework for determining whether a request for flexible working arrangements will be approved or denied. The framework is based on the Appellant’s stated commitment to provide an inclusive and flexible workplace and acknowledgement of the importance of work/life balance, recognition of family responsibilities and endorsement of flexible working arrangements, whilst balancing operational and business requirements. The framework makes clear flexible working arrangements are not an automatic entitlement but rather, to be negotiated so as to balance the reasonable operational and business requirements and the personal needs of employees. It contemplates discussion and negotiation, albeit not in mandatory terms.

1. Both at first instance and on appeal, the Respondent submitted that in order for clause 23.4 of the Agreement to work, the reasonable business grounds had to be assessed at a point in time, namely at the point when they were communicated.[58] The Appellant, at first instance, characterised the question as being “were there reasonable business grounds as at 9 March, assessing, in particular, the flexible working arrangement that was put to us?” [59] On appeal, the Appellant initially contended the evidence before the Commissioner was that there were a myriad of operational difficulties as at 9 March 2023 constituting reasonable business grounds.[60] At the conclusion of the appeal, the Appellant’s position was that the question was framed with “certain breadth” and as such, allowed for an analysis, beyond 9 March 2022, to incorporate other material. [61]

1. The Respondent submitted the request on 21 February 2022 by way of the Flexible Working Arrangement (FWA) Application form.[62] As this form required the Respondent to outline her preferred flexible working arrangement roster configuration for consideration (including hours/shifts), she outlined the following:

“WEEK 1 - Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600 Sunday 0700-1700

WEEK 2 - Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600
WEEK 3 - Tuesday 0700-1700 Wednesday 1100-2300 Saturday 2100-0600
WEEK 4 – Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600
WEEK 5 – Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600
WEEK 6 – Tuesday 0700-1700 Wednesday 1100-2300 Thursday 2100-0600
WEEK 7 – Tuesday 0700-1700 Wednesday 1100-2300 Saturday 2100-0600
WEEK 8 – Tuesday 0700-1700 Wednesday 1100-2300 Friday 2100-0600”

1. The Respondent provided a range of reasons for the request, as required by the form and the FWA Procedure.[63] These related to her personal circumstances. The Respondent also proposed a 12-month period for the flexible working arrangement but did not provide, as per the invitation in the form, more than one roster option.

1. The Appellant’s response in writing was conveyed in an email sent to the Appellant on 9 March 2022 by Mr Clancy, which outlined:

“As per our phone conversation, Hume1 is currently not able to provide shift start/finish times outside the Employee’s Team Roster configuration.

…

While I can appreciate this may not be the response you were hoping for when considering your own personal circumstances and that of supporting Hume 1 with increased overnight resourcing however, we are currently not in a position to offer this level of roster variation.

…”[64]

1. The response of 9 March 2022 had been preceded by some initial feedback regarding the proposal from Mr Liu via email on 28 February 2022, which included:

“The shortened NS hours realistically won’t be feasible and most likely will get rejected as there are no resources at those hours in the region – this is dictated by the People & Culture team who make the guidelines for FWAs I believe.”[65]

1. The FWA Procedure stipulates that the factors to be considered in determining whether a request for FWA is approved or denied include:

• the nature of the employee’s work;

• whether the employee has parental or carer responsibilities;

• the effect on the workplace, including the financial impact on AV and the impact of the flexible work arrangement on the work group and workload of other employees;

• the consequences for the employee of not having the flexible working arrangement;

• overtime and shift penalty implications;

• how long the arrangements will last (i.e. on one occasion or a set timeframe);

• information that has been provided by the employee about their situation;

• the accrued entitlements of the employee, such as personal, carer’s or annual leave;

• whether any legal or other constraints affect the feasibility of AV accommodating the responsibilities, such as occupational health and safety laws;

• secondary employment; and

• any other relevant factors.[66]

1. We accept there were business grounds for the refusal of the request. However, we are not persuaded that the 9 March 2022 response directly engaged with the s.65(5A) matters and nor are we persuaded an assessment of reasonable business grounds was performed with due consideration to the operational and business requirements and the Respondent’s circumstances, as required by the framework.

1. The FWA Policy states “Where possible, FWAs should start and finish according to a roster cycle for Operational staff”.[67] The Appellant’s response to the request that was conveyed on 9 March 2022 indicated the proposed shortened night shift roster times were not possible with the assertion that the Appellant was “currently not able to provide shift start/finish times outside the Employee’s Team Roster configuration”. Clearly this statement, and Mr Liu’s earlier reference to a lack of resources in Hume 1 demonstrate that the Appellant had considered its operational and business requirements. However, the 9 March 2022 response does not suggest the Appellant had recognised that the FWA Policy contemplates employees being able to suggest other working arrangements for consideration. Nor did the response exhibit meaningful engagement with the Appellant’s personal circumstances or evince a preparedness to fulsomely engage with the commitments to:

• provide an inclusive and flexible workplace and acknowledge the importance of flexible working arrangements for employees to fulfil a balance of their work, life and family responsibilities, whilst balancing operational and business requirements, as per the FWA Policy; and

• provide a work environment that would enable employees to optimise their contribution to the organisation, recognising the importance of flexible working arrangements and family friendly work practices in maintaining a diverse, adaptive and high performing workforce, as per the FWA Procedure.

1. There was also nothing in the 9 March 2022 response recognising that a business case could be advanced if there was inclination to approve an ‘unbudgeted’ proposal (i.e. where the proposal did not fit within the approved resource hours, the Appellant’s business or operational needs).[68] There was no evidence that the option of a business case was considered after the Appellant had determined the proposed shortened night shift roster times were simply not possible, as Mr Atkinson’s evidence at the hearing before the Commissioner reveals:

“THE COMMISSIONER: So, in short, it’s look, we’ve got these shifts which are funded, so long as you can fit within them we’ll grant flexibility. If you can’t fit within them, we won’t? --- Correct, Commissioner.

Anything arising, Mr Harrington?

MR HARRINGTON: I don’t want to (indistinct) but what arises is this, why is that? If that is the position, Mr Atkinson, why is that? --- I think that’s a question you’d have to ask the executive team. So, at my level, I do not have the delegation or the scope to create new rosters. So I can only work, and offer staff, the existing shift and rosters that I have to offer that I have been mandated to work within.

There has been some limited evidence, at least in written form, about the possibility of business cases, if you want to change shifts or introduce new shifts entirely. What’s the relevance of a business case, in this context? --- A business case, in this context, could be written, at the request of an employee, after discussion with, in my case, my regional director, to determine if there is a viability or an operational or a business need, to have a change in business practice. A business case would involve a financial cost so therefore a business case could be written and it would be submitted to the executive team for review and consideration.

And who has the ultimate authority to determine whether there is a change to the shift structures, as presently ordained? --- The Ambulance Victoria executive team has the delegation.

Yes, thank you, Commissioner, I probably went a little bit beyond there, but thank you for that opportunity.

THE COMMISSIONER: Yes. Mr Gardner, anything else?

MR GARDNER: Yes, I’ll just ask some questions about that last point, about the business case.

FURTHER CROSS-EXAMINATION BY MR GARDNER [10.28 AM]

MR GARDNER: Mr Atkinson, you’ve referred to the business cases, did you offer to Ms Fyfe to assist her with a business case?---No.

Have you, in your role as area manager, assisted staff members to make business cases?---No.”

1. We do not consider that the 9 March 2022 response suggests that any thought was given to trialling the proposed shortened night shift roster times and then conducting a review. A review process, which is contemplated by both the FWA Policy and the FWA Procedure, would have had regard to the Respondent’s performance, health and wellbeing, the Appellant’s service delivery requirements, problems that might have arisen, the budget and the Respondent’s overtime pattern.[69]

1. Finally, we do not take the Commissioner to have concluded in paragraph [88] of the Decision that the cost impact of the request was small and we are not persuaded the 9 March 2022 response indicated that there had been any specific, wholistic analysis of the potential financial impact of the request in terms of potential costs and savings, or any analysis relating to the workload implications across Hume 1. The Respondent conceded as much.[70]

1. Monash Health has established the requirement for the Appellant to advance a positive case as to why a different answer to the question is the legally correct answer. The Appellant has not persuaded us in this regard. In the absence of the Appellant adequately following the FWA Policy and FWA Procedure by assessing and balancing the competing considerations involved, we are not persuaded that the Appellant had reasonable business grounds for refusing the First FWA Request. For the reasons we have outlined, we are satisfied that the correct answer to the question is “No”.

1. The Appellant has further asserted that the Commissioner fell into jurisdictional error, in that he denied the Appellant natural justice in relation to the finding that clause 23 of the Agreement required that the Appellant genuinely try to reach agreement, before determining the request. This brings into focus the following statement of principle from MZAPC v Minister for Immigration and Border Protection:

“To say that a demonstration that the appellant had been deprived of the opportunity of a successful outcome is an aspect of proof of procedural unfairness is necessarily to accept that procedural unfairness is a matter of practical injustice, so that a demonstration of a bare or merely technical denial of procedural fairness alone is not sufficient to establish an entitlement to a new trial.”[71]

1. Any procedural unfairness in the conduct of this matter at first instance has not resulted in a “matter of practical injustice”. In any event, it has been cured because the Appellant has now had the opportunity to put before us that which it could not at first instance. In all the circumstances of this case and having had regard to the submissions of the parties, we are satisfied the Commissioner’s decision was correct.

1. We were persuaded to grant permission to appeal because this is an appeal to which the correctness standard applies and an incorrect decision would subject the Appellant to an injustice. However, our conclusion is that the Commissioner’s decision was correct and, accordingly, the appeal must be dismissed.

Orders

1. We order as follows:

(1)Permission to appeal is granted.

(2)The appeal is dismissed.

DEPUTY PRESIDENT

Appearances:

N. Harrington of counsel for the appellant.
M. Harding SC for the respondent.

Hearing details:
2023.
Melbourne.
17 April.

[1] [2023] FWC 49.

[2] [2020] FWCA 5711, AE509354.

[3] [2023] FWC 49 at [14] and [17].

[4] Ibid at [5]-[8].

[5] Ibid at [20]-[21].

[6] Ibid at [24].

[7] [2018] FWC 5695.

[8] [2022] FWC 49 at [29]-[31].

[9] Ibid at [35].

[10] Fair Work Legislation (Secure Jobs, Better Pay) Act 2022.

[11] [2022] FWC 49 at [36]-[39].

[12] Ibid at [48].

[13] [2013] FWC 5 at [20].

[14] [2022] FWC 49 at [49].

[15] Ibid at [51].

[16] Ibid at [52].

[17] Ibid at [65]-[68] and [71].

[18] Ibid at [75] and [76].

[19] Ibid at [80].

[20] Ibid at [83].

[21] Ibid at [84].

[22] Relying on Brimbank, [2013] FWC 5 at [16].

[23] [2022] FWC 49 at [88].

[24] Ibid at [92].

[25] Ibid at [94].

[26] Ibid at [95].

[27] Ibid at [101].

[28] Ibid at [102].

[29] Ibid at [105].

[30] [2022] FWC 49 at [76].

[31] Ibid at [80].

[32] Witness Statement of Timothy Clancy dated 7 October 2022 at [30]-[35] and Witness Statement of Edward Liu dated 7 October 2022 at [32]-[34] and [36]-[42].

[33] Appeal Book at p.332.

[34] Appeal Book at p.334.

[35] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [30]-[31] (Kiefel, Gageler and Keane JJ); [72] (Edelman J).

[36] MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [46] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[37] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45]-[46]; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441, [2]-[3], [35], [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ); see also Edelman J at [160], although for his Honour (who with Gordon and Steward JJ dissented on materiality and onus) the capability of an asserted procedural error to cause sufficient injustice went to the existence or otherwise of an asserted error as jurisdictional per se.

[38] [2023] FWC 49 at [56]-[65].

[39]    Appeal Book at p.334.

[40] Clause 11.5(e) of the Ambulance Victoria Enterprise Agreement 2020, [2020] FWCA 5711, AE509354.

[41] Rail Commissioner v Rogers [2021] FWCFB] 371 at [61].

[42]See Minister for Immigration and Border Protection  v SZVFW (2018) 264 CLR 541, [42]-[50] (Gageler J).

[43] [2018] HCA 30, 264 CLR 541.

[44] Ibid at [46].

[45] Ibid at [48]-[49].

[46] [2022] FWCFB 82.

[47] Ibid at [25].

[48] Rail Commissioner v Rogers [2021] FWCFB] 371 at [61].

[49] Appeal Book at p.339.

[50] Appeal Book at p.342.

[51] [2022] FWC 2914 at [76].

[52] [2022] FWCFB 82 at [25].

[53] Appeal Transcript PN 370.

[54] Appeal Transcript PN 209.

[55] Appeal Book at p.332.

[56] Exhibit 22-Witness Statement of Michael Atkinson dated 7 October 2022 at [23] –Appeal Book at p.327.

[57] Appeal Book at p.332-336.

[58] Transcript dated 25 October 2022 at PN 953 & PN 959 and Appeal Transcript PN 439-440.

[59] Transcript dated 25 October 2022 at PN 1085.

[60] Appeal Transcript PN 325.

[61] Appeal Transcript PN 556.

[62] Appeal Book at p.241.

[63] Appeal Book at p.345 at “16. Consideration”.

[64] Appeal Book at p.245.

[65] Appeal Book at p.246.

[66] Appeal Book at p.344.

[67] Appeal Book at p.333.

[68] Appeal Book at p.344.

[69] Appeal Book at p.336.

[70] Transcript PN 223 and PN 238.

[71] (2021) 95 ALJR 441 at [46] (Kiefel CJ, Gageler, Keane and Gleeson JJ)

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