Australian Municipal, Administrative, Clerical and Services Union v Mildura Rural City Council

[2012] FWA 4308

[2012] FWA 4308

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute in relation to flexible working arrangements

Australian Municipal, Administrative, Clerical and Services Union
v
Mildura Rural City Council
(C2012/3207)

DEPUTY PRESIDENT SMITH MELBOURNE, 22 MAY 2012

Alleged dispute concerning flexible working arrangements; proper application of the agreement.

[1] The following decision, now edited, was issued during proceedings conducted on 10 May 2012.

[2] This is an application by Mr Andrew Hickey for a determination of the proper application of the Mildura Rural City Council Enterprise Agreement Number 6, 2009 [AE873182] (the Agreement). Mr Hickey argues that the Mildura Rural City Council (the Council) has unreasonably refused him an individual flexibility agreement. Clause 7.2 of the Agreement permits an employer and employee to agree to altering arrangements about when work is preformed. Mr Hickey seeks to vary his hours from a 7.30 a.m. start and a 4.00 p.m. finish to an 8.30 a.m. start and a 5.00 p.m. finish.

[3] When the matter was listed, and pursuant to clause 18 of the Agreement, attempts were made to resolve the matter through conciliation. Unfortunately agreement was not able to be reached and both parties accepted that the matter would be arbitrated. The matter to be arbitrated is whether or not Council unreasonably withheld agreement for the alteration in starting and finishing times. It is appropriate to note in passing that this controversy does not enliven s.65 of the Fair Work Act 2009 (the Act), although I have taken into account s.3(d) of the Act which provides:

As an objective, assisting employees to balance their work and family responsibilities by providing for flexible working arrangements.

[4] Clause 7.2 of the Agreement contains the standard flexibility clause, which amongst other things, is designed to give effect to s.3(d) of the Act. The preamble to the clause is:

An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement.

[5] It can be immediately seen that this is a facilitative clause and is not a mandatory one, however this clause does not mean that an employer could refuse to agree to a request for artificial or capricious reasons otherwise the opportunities provided by the clause, particularly in relation to employees with family responsibilities, would be illusory. Therefore, it is appropriate to examine the circumstances of this case to test both the genuineness of the request and the basis upon which the refusal was made.

[6] Mr Hickey has recently become a single parent and has a nine year old son. His present arrangements are that he takes his son to his parents (aged 80 and 70) in the morning, who escort his son to the bus at the appropriate time. After school his son is picked up by taxi and taken to after-school care. Mr Hickey has flexibility with after-school care but he wishes to relieve his parents of the responsibility of looking after his son before school, and of him having to travel on the bus. Mr Hickey has been actively seeking before-school care arrangements.

[7] I have no doubt that Mr Hickey is genuine in his application to Council and is seeking to overcome the need for the alteration in hours. He seeks an alteration of hours for up to 12 months. Council considered the request made by Mr Hickey and declined it for operational and occupational health and safety reasons. Shortly stated, Council submits that Mr Hickey works outdoors in a team doing, amongst other things, slashing and rolling work. The work varies during the year and Council also undertakes work for VicRoads. The work locations also vary from local to up to a hundred kilometres from Mildura.

[8] Council submits that all functions and supervision is structured around a 7.30 a.m. start and a 4.00 p.m. finish, and that if Mr Hickey started an hour later, it would have a deleterious effect on its crewing for that hour and Council would have to specially transport him to the work site both before and after work. After 4.00 p.m. until 5.00 p.m., when Mr Hickey wishes to work, he would not be supported by other members of the crew such as traffic management and staff, and that if work could be performed, he would be working alone without appropriate or adequate backup in the event of an incident.

[9] It is the practice for team leaders to cease work at 4.00 p.m. at the depot unless there is overtime required. Ordinary hours end at 4.00 p.m. In addition, workshop staff would not be available if there was a breakdown in machinery. Mr Vaughan, the infrastructure services co-ordinator gave evidence on all of the operational issues which led him to the conclusion that the request could not be accommodated consistent with operational requirements of Council. There were a number of administrative matters also raised. An important matter was the weekly toolbox meeting which Mr Hickey would miss. These meetings usually deal with administrative and other occupational health and safety matters.

[10] Finally, Council submitted that it does support flexible working patterns where possible and instanced some 34 requests where only two had been declined. It is clear that Mr Hickey is genuine in his application and is seeking to overcome the need to alter his hours of work. However I am also satisfied that Council has properly considered his request and examined closely the operational needs. I am satisfied that the refusal by Council is reasonable and therefore I find that it has properly applied clause 7.2 of the Agreement.

Appearances:

D. Harris for the Australian Municipal, Administrative, Clerical and Services Union.

T. Rodger on behalf of the Mildura Rural City Council.

Hearing details:

2012.
Mildura:
May, 10.

DEPUTY PRESIDENT

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