Anthony May v Paper Australia Pty Ltd
[2025] FWC 799
•20 MARCH 2025
| [2025] FWC 799 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.65B – Application for a dispute about requests for flexible work arrangements
Anthony May
v
Paper Australia Pty Ltd
(C2024/7074)
| COMMISSIONER YILMAZ | MELBOURNE, 20 MARCH 2025 |
Application to deal with a dispute about the right to request a flexible working arrangement – application of the enterprise agreement – whether reasonable business grounds – orders made
Mr Anthony May (the Applicant) initially commenced employment with Paper Australia Pty Ltd (Paper Australia) in January 1985 as an apprentice Boiler Maker. Having qualified in the trade, he obtained further qualifications in Fitting and Turning. Since commencement, Mr May held various trade related roles and his most recent position title is Team Leader Planner Roll Workshop. Mr May shares carer responsibilities with his wife for their three children. The children are school age, but the eldest child was due to complete year 12 in 2024. From 2011 until July 2024, Mr May had an informal flexible working arrangement (FWA) where his start and finish times on Thursdays were flexible enough to allow him to meet his parental responsibilities around school pick up times and after school activities.
This informal FWA that had been in place since 2011[1] ended when the General Manager informed Mr May and other employees that a recent audit identified that the flexible arrangements in relation to start and finish times were not compliant with the enterprise agreement.[2] With the removal of the informal FWA, Mr May was unable to manage the care of his children. He then applied for a formal FWA under s.65(1) of the Fair Work Act 2009 (the Act) on 9 August 2024 which was rejected on 30 August 2024 on the basis that the request did not comply with clause 18.6 of the enterprise agreement.
The enterprise agreement applying to Mr May is the Opal Australian Paper Maryvale Mill Mechanical Maintenance & Engineering Store Enterprise Agreement 2024[3] (the Agreement). The relevant clause relied on by Paper Australia to reject the FWA is 18.6 – hours of work-day workers (roster) and for the alternative option of make-up time, Paper Australia relies on clause 22.7 of the pre-modern Award that is incorporated into the Agreement.[4]
Paper Australia rejected the application citing reasonable business grounds, being 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.” However, the letter proceeds to explain that the flexibility sought can be accommodated alternatively by using clause 22.7 – make-up time in the Agreement.
The roster in clause 18 (worked by Mr May) is a four-day week rotating roster over a fortnight as follows:
| Day | Hours of work/ RDO | Start and finish times | |
| Week 1 | Monday | RDO | |
| Tuesday | 10 | 7.00am – 5.30pm | |
| Wednesday | 10 | 7.00am – 5.30pm | |
| Thursday | 10 | 7.00am – 5.30pm | |
| Friday | 8 | 7.00am –3.30pm | |
| Week 2 | Monday | 8 | 7.00am – 3.30pm |
| Tuesday | 10 | 7.00am – 5.30pm | |
| Wednesday | 10 | 7.00am – 5.30pm | |
| Thursday | 10 | 7.00am – 5.30pm | |
| Friday | RDO |
The FWA request reflects Mr May’s working roster since 2011. In terms of the above Agreement roster clause, it would involve 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. As well as varying start and finishing time by 30 minutes on the Thursday. These shift swaps would require Mr May to work 8 hours each Thursday, commencing at 6:30am and finishing work at 3.00pm; he submits that this would accommodate his parental responsibilities.
The alternative option offered to Mr May by Paper Australia involved 2 hours of make-up time at the end of the next 8-hour shift (i.e. that instead of finishing at 3.30pm, Mr May would work until 5.30pm) if he finished work 2.5 hours early on the Thursday shift. The balance of 0.5 hours is to be made up with an earlier start time of 30 minutes on the following Thursday. Mr May rejected this option on the basis that it was impracticable and resulted in variation of his weekly pay.
After the parties were unable to resolve the matter between themselves at the workplace level, Mr May (with the assistance of his union)[5] made an application to the Commission pursuant to s.65B of the Act. On 23 October 2024, a conference between the parties did not resolve the dispute and dates were issued for the filing of materials to arbitrate the matter.
Mr May is seeking an order that the refusal to accept the FWA is not on reasonable business grounds and an order that Paper Australia grants the FWA request.
At the conference between the parties, it was agreed to determine whether the reason for refusal to grant Mr May’s flexible working arrangement application is a reasonable business ground under s.65A(5) of the Act.
Submissions
Mr May submits that the Commission ought to find that Paper Australia’s refusal is not based on reasonable business grounds. He submits that s.65A(5) of the Act sets out a non-exhaustive list of circumstances that amount to “reasonable business grounds,” none of which are relied upon by Paper Australia in their refusal. Instead, the only ground pressed by Paper Australia is that the request does not comply with clause 18.6 of the Agreement. The refusal does not rely on cost, capacity to change working arrangements, an impracticality of the request, impact on productivity or efficiency, nor any negative impact on customer service.[6]
Mr May relies on recent decisions to give insight into what constitutes reasonable business grounds.[7] He submits that the wording requires the employer to demonstrate a likely business detriment and if there is no business detriment, it is in the employer’s interest to accommodate the employee to achieve work/life balance and/or encourage employee retention and job security.[8] Further, he submits that Paper Australia’s refusal of the request is contrary to the objects of the Act.[9]
In respect to Paper Australia’s submission that refusal of the request based on compliance with the Agreement is a reasonable business ground, Mr May submits that the reason is not a reasonable business ground. He refers to and relies on clause 2.3 of the Agreement, which is a National Employment Standard (NES) precedence clause. This clause makes clear that where there is an inconsistency between the Agreement and the NES, the NES prevails where it provides for a more beneficial term. Therefore, the submission that clause 18 of the Agreement prohibits or restricts Paper Australia to grant the request is false[10] or invalid as the request is consistent with the Agreement and does not create any liability in contravention of s.50 of the Act.[11] Further, granting the order as proposed will not be inconsistent with s.65C(2A)(b) of the Act.[12]
In addition, s.55 (1) of the Act deals with the interaction between the NES and enterprise agreements which states “A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.”
Mr May submits that Paper Australia’s submission concerning the provision for an individual flexibility agreement is neither relevant nor properly allows for the variation of the Agreement terms to accommodate a request as reflected in this application.
Mr May gave evidence that the make-up clause in the Agreement is unsatisfactory to meet his requirements. The effect of relying on this clause can cause loss of wages where he is unable for any reason to accommodate the make-up time prior to the end of the pay run.[13] The loss of wages will constitute the time equating to make-up time not undertaken in the relevant pay run. The same cannot be said for the adoption of a FWA. Even if utilisation of make-up time produces the same benefit as the request (which Mr My denies) it is submitted that this cannot be relied upon as a reasonable business ground to refuse the request.[14] Mr May submitted evidence of the pay period 21 July 2024 to 3 August 2024 which demonstrates a loss of wages of $140 after not being able to make-up 2 hours of work. He submits that the application of make-up time is not sustainable, particularly in the context of the need for a longer-term flexible working arrangement.[15]
Paper Australia submit that it has no capacity to amend the roster to accommodate Mr May’s flexible working arrangement request because clause 18 of the Agreement requires the consensus of all the parties - AMWU, United Workers Union (UWU) or the employees covered by the Agreement. As there is no agreement from among the parties to the Agreement, it submits that use of the make-up time clause produces the same substantive outcome.[16] The make-up provision, it submits, can be utilised because of the incorporated pre-modern award.[17]
Paper Australia refer to clause 18 of the Agreement and particularly identify subclause 18.2 which provides:
“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.”
Additionally, Paper Australia refer to subclause 18.5 which provides:
“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.”[18] It is their view that these provisions of the Agreement require a consensus of the parties to vary the roster. As there is no consensus agreement, it cannot on its own, even with agreement of Mr May, grant the flexible working arrangement request.”[19]
Paper Australia submits that its position is reinforced by the rejection of its proposal during bargaining that start and finish times ought to be included in the Agreement’s Individual Flexibility Arrangement clause. It submits that the rejection of the proposal by bargaining representatives, including the AMWU, means that subclauses 18.2 and 18.5 relevantly apply to any change to the roster applicable to an individual as well as the group.[20]
Paper Australia further submits that Mr May is not limited in “making a flexible working arrangement request in line with s.65 of the Act,” but a right to request is contrasted with a right to “override the terms of the Agreement.”[21]
It submitted that granting the Order as requested will not only contravene clause 18.5 of the Agreement, but also contravenes s.65C(2A)(b) of the Act. Paper Australia submit that s.65C(2A)(b) prohibits the Commission from making an order that would be inconsistent with a term of a fair work instrument (the Agreement). It is submitted that Agreements are recognised as having statutory force,[22] and relevantly ss.50, 51, 53 and 54 of the Act concern application of an enterprise agreement to an employer, employee and employee organisation covered by the Agreement. In this context, Paper Australia submit that an individual agreement between Mr May and Paper Australia is an agreement between private legal persons and as such cannot impose its agreed terms on an industrial instrument. Instead, an agreement between Paper Australia and Mr May must be consistent with any industrial instrument. It is on this basis that Paper Australia submit that the Commission cannot order with any force a private agreement between private legal persons.[23]
Paper Australia further submit that s.55 of the Act is duplicated in clause 2.3 of the Agreement which contains a NES precedence clause. A flexibility agreement with an individual, in its view, will undermine or override the Agreement with no indemnity against the civil remedy provisions for breaches of industrial instruments arising from s.50 of the Act. It submits that clause 2.3 has no application to clause 18.5 of the Agreement.
Paper Australia submit that Mr May meets the requirements to make a FWA request, but given its inability to grant the request due to a reasonable business ground, it has met Mr May’s necessary flexibility through make-up time. It asserts that this is a reasonable alternative mechanism and one that meets the terms of the Agreement. On 30 August 2024, Mr Rod Beales, General Manager of Workplace Relations, wrote to Mr May setting out the reasons for its rejection and the alternative proposal to meet his requirements. It submits that s.65A(5) of the Act sets out a non-exhaustive list of circumstances that amount to reasonable business grounds and Paper Australia’s reason is of this kind.[24]
The legislative framework
Part 2-2 of the Act contains the National Employment standards which are minimum conditions that apply to the employment of national system employees. Section 44 of the Act makes clear that an employer must not contravene a provision of a NES. Further, s.55 of the Act provides that an enterprise agreement “must not exclude the National Employment Standards or any provision of the National Employment Standards.” [25] An enterprise agreement may include terms as expressively permitted to be included by provision of Part 2-2.[26] The NES have effect subject to the terms included in an enterprise agreement as expressly permitted.[27] Enterprise agreements may include terms that are ancillary or incidental to the operation of the entitlement under a NES or terms that are supplementary.[28]
Section 65 of Division 4 of the Act concerns requests for a FWA. An employee may request a FWA if certain circumstances apply. In this matter, Mr May satisfies the circumstances of s.651A(a). He is an employee who is the parent, or has responsibility for the care, of a child that is school age or younger. This is not contested by Paper Australia. An employee entitled to make the request must have completed at least 12 months of continuous service immediately before making the request.[29] Applications must be made in writing, setting out the change sought and the reasons for the request.[30] It is not contested that Mr May complied with these requirements.
Section 65A outlines the process for responding to FWA requests. Relevantly, s.65A(3) concerns when an employer may refuse a request. Section 65A(3) in its entirety is below:
“(3) The employer may refuse the request only if:
(a) the employer has:
(i) discussed the request with the employee; and
(ii) genuinely tried to reach an agreement with the employee about making changes to the employee's working arrangements to accommodate the circumstances mentioned in subsection (1); and
(b) the employer and the employee have not reached such an agreement; and
(c) the employer has had regard to the consequences of the refusal for the employee; and
(d) the refusal is on reasonable business grounds.
Note: An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).”
Further s.65A(5) provides for a refusal on reasonable business grounds and s65A(6) requires the employer to explain the grounds for refusal. Section 65A(5) follows:
“Reasonable business grounds for refusing requests
(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:
(a) that the new working arrangements requested 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;
(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;
(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.
Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).”
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amendments effective 6 June 2023 strengthened provisions concerning flexible working arrangements. As a result of these amendments, the Commission can deal with disputes about requests for flexible working arrangements under s.65B and s.65C as it considers appropriate, including arbitration.
Disputes regarding the operation of Division 4 may be dealt with in the Commission. Applications may be made under s.65B of the Act where the employer refuses a request. If a dispute is notified under s.65B, the Commission ought to deal with the matter firstly other than by arbitration, and where arbitration is required, s.65C provides for orders to be made where a dispute is dealt with by arbitration. Alternatively, notifications of dispute to the Commission may be made under s.739 of the Act through the dispute settlement clause contained in an enterprise agreement. In this matter, the application is made under s.65B of the Act.
No jurisdictional matters have been raised in relation to this application. The dispute concerns the employer’s refusal of the application on alleged reasonable business grounds being that the Agreement under clause 18 does not permit a change by an individual and the Employer to the 38 ordinary hours roster profile as contained in the clause.
Consideration
Jurisdiction
This dispute is not a dispute under s.739 of the Act, but rather s.65B. Section 65B(1) defines the disputes between the employer and an employee about Division 4 (flexible working arrangement requests) which includes an employer’s refusal of the employee’s request made under s.65.
Sections 65B and 65C of the Act empowers the Commission to deal with disputes arising from the employer’s refusal of, or failure to reply within 21 days to an employee’s request made under s.65(1).
It is important to note that Mr May made an application under s.65(1) of the Act. Because Paper Australia refused Mr May’s request, s.65B is enlivened. This dispute is about the matters in s.65B(1), therefore the Commission has jurisdiction to deal with the dispute as provided by s.65B(4) and s.65C.
There is no contest concerning the application of s.65 to Mr May’s application. I am satisfied that Mr May is an employee and has made a request for a flexible working arrangement relating to his circumstances as a parent of a child (in this case more than one child) who is of school age.[31] These circumstances are a matter of fact at the time the application was made for a FWA. The reasons for the request are related to the circumstances of the employee. Mr May gave evidence of his responsibilities as a parent. There is a nexus between the request and the relevant circumstances.[32] Mr May has met the minimum employment period of service,[33] and the request was made in writing setting out the details of the change sought and reasons for the change.[34] Finally, the request was made on 9 August 2024; after insertion of the additional protections in the Act operative from 6 June 2023.[35]
National Employment Standards
As this dispute concerns a NES, it is important to reiterate the purpose of the FWA standard. Section 65 of the Act is a minimum employment standard applicable to Mr May and the minimum standard underpins provisions contained in the relevant enterprise Agreement. A term of an industrial instrument must not exclude a National Minimum Standard or any provision of the National Minimum Standard.[36]Terms in an enterprise agreement apply where they are ancillary, incidental or supplementary but only to the effect that they are not detrimental to an employee in any respect when compared to the NES.[37] The entitlement to the NES overrides enterprise agreement terms and this is reinforced in s. 55(6) and (7) of the Act. Section 56 makes clear that terms of an enterprise agreement that contravene s.55 have no effect.
Further, s.44 in Part 2-1 core provisions, reinforces that an employer must not contravene a provision of the NES.[38] Consequently, a breach of the FWA provisions in s.65A is a breach of the Act.
While the Act already contained the right to make a request for flexible working arrangements where an employee is a parent of or has responsibility for the care of a school aged child, the 2023 amendments to the Act have strengthened the protections and introduced the power for the Commission to settle disputes including by arbitration.
Helpfully, the Full Bench in Quirke v BSR[39] set out the legislative context in a matter where the employer declined a request. Additionally, the Full Bench outlines the jurisdictional prerequisites, which I have considered in this matter (see [34]). However in setting out the legislation, the Full Bench also referred to relevant extracts from the Statement of Compatibility with Human Rights in the Explanatory Memorandum for the Fair Work Amendment Bill 2013 (2013 EM).[40] Relevantly, the 2013 EM stated:
“Part 3 of Schedule 1 to the Bill extends the right to request a change in working arrangements to a broader category of persons, including to employees with caring responsibilities, parents with children that are school age or younger, employees with a disability, those who are mature age, as well as to employees who are experiencing violence from a family member or are providing care and support to a member of their immediate family or a member of their household as a result of family violence.
. . .
Extending the right to request a change in working conditions to this additional range of employees recognises the interests of these particular groups and further enhances the assistance provided to them.
…
These amendments reinforce existing protections against discrimination contained in the FW Act.[41]
The provision concerning the right to request a flexible working arrangement is a NES in Part 2-2. This is a minimum entitlement for employees with parental responsibilities to request a change in their working conditions to enhance assistance in meeting their interests and considered a protection from discrimination. Section 59 contains a guide to the Part and states:
“The National Employment Standards are minimum standards that apply to the employment of national system employees. Part 2-1 (which deals with the core provisions for this Chapter) contains the obligation for employers to comply with the National Employment Standards (see s.44).
The National Employment Standards also underpin what can be included in modern awards and enterprise agreements. Part 2-1 provides that the National Employment Standards cannot be excluded by modern awards or enterprise agreements (see s.55 and 56)).”
Further at s.61 of the Act it states that the NES are minimum standards applying to the employment of employees, which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in s.55(5).
While a note has no effect as a section of the Act, they provide a useful reminder of relevant cross referencing of sections of the Act. A note also is located at s.61 which states: “subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.”
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 Mr May 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 Mr May’s entitlement to a flexibility based on his parental responsibilities. The request made under s.65 of the Act seeks a change to hours of work and that change is to clause 18 of the Agreement which restricts the FWA. Consequently, Paper Australia’s submission that Mr May 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, noting however, that more beneficial terms in an instrument cannot be overridden by agreement between Mr May and Paper Australia.
Is an order appropriate?
Section 65B defines the disputes between an employer and employee in terms of operation of the Division, where certain conditions are met. Those conditions were met when Mr May made an application under s.65(1) and Paper Australia refused the request. Two notes immediately follow this part of s.65B. Note 1 refers to the requirement of an industrial instruments to have a term that provides a procedure for settling disputes in relation to the NES. The Agreement in question was approved having complied with s.186(6) and is consistent with the note. Nevertheless, Mr May has not utilised the dispute settlement clause for this dispute. Note 2 clarifies that “subsection 55(4) permits the inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes s.55 (see section 56).”
Section 65C concerns the type of orders to be made when the Commission deals with a dispute by arbitration. Relevantly, if an employer has refused a request, an order may made where appropriate that the refusal on “reasonable business grounds” are not to have been reasonable business grounds.[42] Paper Australia submits it has refused the request on reasonable business grounds; being that to grant the request would breach the Agreement. 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.
Paper Australia submits that s.65C(2A)(b) prohibits an order which is inconsistent with the Agreement. Its submissions that an order of the Commission to grant Mr May’s application is prohibited or has no effect is misconstrued. Again, the NES is a minimum employment standard that cannot be overridden by a term of an enterprise agreement. The effect of clause 18 of the Agreement, if applied literally to reject the request, limits Mr May’s entitlement to a legislative minimum standard. Section 65C(2A), provides that the Commission must not make an order that would be inconsistent with either a provision of this Act[43] or an industrial instrument.[44] Section 65C(2A)(b) cannot be read in isolation in the manner proposed by Paper Australia but must be read in the context of s.65 in its entirety and ss. 55, 56 and 59 of the Act. The Explanatory Memorandum[45] provides guidance regarding the application of s.65C(2A) by describing relevant situations such as in the event rates of pay, penalty rates or other conditions that apply to certain patterns of work, an order cannot be inconsistent with or less favourable than those provisions. In this matter should an order be appropriate, a variation of the roster will not produce a result less favourable to either Mr May or Paper Australia. To be clear, the Commission must not make an order that is inconsistent with the Act and terms of an industrial instrument (that are ancillary, incidental or supplementary but only to the effect that they are not detrimental).[46]
Paper Australia submits that s.55 of the Act is duplicated in the Agreement, but rather clause 2.3 of the Agreement reinforces that the NES overrides any term in the Agreement. Clause 2.3 of the Agreement states:
“The National Employment Standards (NES) applies at all times to employees covered under this Agreement. Where there is an inconsistency between this Agreement and the NES, the more beneficial term to the employee will apply to the extent of the inconsistency. Where the NES is varied to provide a benefit higher than that contained in the Agreement, the NES will apply to the extent of the inconsistency.”
The application of clause 18 over and above the requirements of s.65 is inconsistent with compliance with a NES. Both clause 2.3 of the Agreement and s.55 of the Act confirm that the NES overrides any limitations in clause 18 to an employee seeking a change to working hours to accommodate a flexible working arrangement.
Importantly before the making of an order s.65C (2) requires the Commission to consider fairness between the employer and the employee. I observe that it is only to avoid a breach of the Agreement that Paper Australia refused the request. There is no contest that Mr May had access to the same flexibility now being sought since 2011 until the approval of the current Agreement. To avoid a breach of the Agreement, Paper Australia sought an alternative; the application of make-up time. However, the evidence was that make-up time was in fact not equal to the effect of having a FWA. Instead, there was evidence, which I accept, that this is or has been detrimental to Mr May. It is required that I consider fairness, to weigh up the interests of the employee and employer. Paper Australia has no issue with the object of the Act to provide a balanced framework for cooperative and productive workplace relations. Paper Australia has no competing interest in granting the request other than its concern that it results in a breach of clause 18. There is no other reason indicative of those in s.65A(5) to deny the request. There is no evidence of detriment to either Paper Australia or Mr May in granting the request. As Paper Australia 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 these circumstances, having considered fairness to both parties, it is appropriate to make an order to resolve the dispute.
There is no prospect of settling this dispute without this decision and an order being made.[47] The parties failed to resolve the dispute at the workplace level and participated in conciliation without resolution. Paper Australia’s concerns regarding breach of Agreement were not ameliorated and hence a decision and order is necessary. Having considered the evidence, it is apparent that there is no reasonable prospect of success in resolving the dispute without making an order.
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 employer has refused the request, and it is appropriate to make an order that its grounds for refusal are not reasonable business grounds.[48]
Conclusion
The Commission can use its discretion to make orders, and in this matter, I do so order that the grounds on which Paper Australia refused Mr May’s request for flexible working arrangements is taken not to be reasonable business grounds. I make an order that Paper Australia grant Mr May’s request in the form outlined in his request for a flexible working arrangement. The effect of the application is to amend Mr May’s roster contained in clause 18 of the Agreement to allow Mr May during school term times to complete his ordinary hours each Thursday from 6:30am to 3:00pm and to extend the shift in clause 18 which concludes at 3.30 to finish at 5.30pm (Friday in week 1 and Monday in week 2).
An order[49] to that effect will be issued with this decision.
COMMISSIONER
[1] Exhibit A1, witness statement of Anthony May dated 13 November 2024 at [8] and attachments (Exhibit A1).
[2] Email sent on 25 July 2024 titled ‘Maintenance dayworker update’ – attachment AM-1 of Exhibit A1.
[3] AE524579.
[4] Clause 2.1 of the Agreement incorporates the Pulp and Paper Industry (Maintenance and Services) Award 2003 as it stood on 1 March 2006.
[5] Australian Manufacturing Workers’ Union (AMWU).
[6] Applicant’s outline of submissions [17] - [18].
[7] See Ridings v Fedex Express Australia Pty Ltd T/A Fedex[2024] FWC 1845 at [65] and Fyfe v Ambulance Victoria[2023] FWC 49 at [88].
[8] Ibid.
[9] See s.3(d) Fair Work Act 2009 and Explanatory Memorandum, Fair Work Bill 2008 at [11].
[10] Applicant’s outline of submissions[24] – [26] and Applicant’s reply submissions [2] – [6].
[11] Applicant’s reply submissions [3].
[12] Ibid [4].
[13] Exhibit A2, witness statement of Anthony May dated 16 December 2024 and attachments (Exhibit A2).
[14] Applicant’s reply submissions [13] and attachment AM-4.
[15] Exhibit A2 [2] – [5]; and Exhibit A3, witness statement of Anthony May dated 19 December 2024 (Exhibit A3).
[16] Respondent’s submissions [5] – [8].
[17] The Agreement at clause 2.1 incorporates the Pulp and Paper Industry (Maintenance and Services) Award 2003 as it stood on 1 March 2006.
[18] Respondent’s submissions [11] – [12].
[19] Respondent’s submissions [16].
[20] Exhibit R1 witness statement of Rod Beales, General Manager - Workplace Relations [6]-[10] and attachments (Exhibit R1).
[21] Respondent’s submissions [17].
[22] See Shop, Distributive and Allied Employees’ Association v Target Australia Pty Ltd [2021] FCA 1038.
[23] Respondent’s submissions [22] – [25].
[24] Respondent’s submissions [56]; Exhibit R1 [22], Attachment RB-7 and RB-8 -further letter of 30 August 2024.
[25] Fair Work Act 2009 (Cth) s 55(1).
[26] Ibid s 55(2).
[27] Ibid s 55(3).
[28] Ibid s 55(4).
[29] Ibid s 65(2).
[30] Ibid s 65(3).
[31] Ibid s 65(1A)(a).
[32] See Quirke v BSR Australia Ltd[2023] FWCFB 209 [23] and Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth).
[33] Fair Work Act 2009 (Cth) s 65(2).
[34] Ibid s 65(3)(a) and (b).
[35] Jurisdictional matters referenced in Quirke v BSR Australia Ltd[2023] FWCFB 209 [21] – [25].
[36] Fair Work Act 2009 (Cth) s 55(1).
[37] Ibid s 55(4).
[38] Giving rise to a civil remedy.
[39] Quirke v BSR Australia Ltd[2023] FWCFB 209.
[40] Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth).
[41] Ibid [15].
[42] Fair Work Act 2009 (Cth) s 65C(1)(b)(ii).
[43] Ibid s 65C(2A)(a).
[44] Ibid s 65C(2A)(b).
[45] Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) at 639.
[46] Fair Work Act 2009 (Cth) s 55(4).
[47] Ibid s 65C(3).
[48] Ibid s 65C(b)(ii) and 65C(5)(b).
[49] PR785391.
Printed by authority of the Commonwealth Government Printer
<PR785390>
1
4
0