C.H. v Australian Criminal Intelligence Commission - [2022] FWC 2051

[2022] FWC 2051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution in relation to flexible working arrangements

C.H.
v

Australian Criminal Intelligence Commission

(C2022/1413)

COMMISSIONER MCKINNON

SYDNEY, 16 SEPTEMBER 2022

Application to deal with a dispute in relation to personal/carer’s leave

This is a dispute about the entitlement to personal/carer’s leave under clause 131(c) of the Australian Criminal Intelligence Commission Enterprise Agreement 2016-19 (the Agreement) In dispute is whether the particular circumstances of C.H. are “other exceptional circumstances” for the purposes of clause 131(c) of the Agreement.

C.H. is employed by the Australian Criminal Intelligence Commission (ACIC) under the Agreement. He and his wife are trying to start a family but are having difficulty because of his wife’s medical condition. They are worried about the effect that COVID-19 infection will have on the chances of a successful pregnancy. To minimise the risk, C.H. wants to work mostly from home for blocks of up to 12 weeks at a time, for an indefinite period of up to 5 years.

The ACIC has refused the request to work from home for 5 days per week. Its Home‑Based Work (HBW) Policy provides for employees to work from home but requires most employees to have regular weekly attendance of at least 2 days per week in the office. As an alternative, C.H. has proposed working from home for 3 days per week and taking personal / carer’s leave for 2 days per week during the anticipated 12‑week blocks. The ACIC has refused this request because it does not consider that C.H. would be eligible for personal/carer’s leave under clause 131 of the Agreement in the circumstances.

C.H. has applied to the Commission to deal with the dispute under section 739 of the Fair Work Act 2009 (Act) and clauses 254 to 261 of the Agreement (which deal with dispute resolution). C.H. seeks a finding that his are “other exceptional circumstances” for the purposes of taking personal/carer’s leave under clause 131(c) of the Agreement. C.H. also seeks the restoration of annual leave taken instead of personal leave for this purpose and a review of, or changes to, the HBW Policy so that it is fairer for employees. The parties agree that the Commission has jurisdiction to deal with the dispute to the extent that it is about matters arising under the Agreement.

I have decided that the circumstances of C.H. are not exceptional circumstances within the meaning of clause 131(c) of the Agreement. Accordingly, no restoration of annual leave taken instead of personal/carer’s leave is required. I have not assessed the fairness of the HBW Policy. These are my reasons.

The Agreement

The Agreement is a single enterprise agreement covering the ACIC and its non-SES employees. The Agreement is supported by ACIC policies, procedures and guidelines (as updated from time to time) but they do not form part of the Agreement. The Agreement prevails over a policy, procedure or guideline to the extent of any inconsistency. Policies, procedures and guidelines which are referenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 2051
Decision Date: 16 SEPTEMBER 2022

CaseChat Overview and Summary

In C.H. v Australian Criminal Intelligence Commission, the applicant, C.H., sought a finding that his circumstances constituted "other exceptional circumstances" under clause 131(c) of the Australian Criminal Intelligence Commission Enterprise Agreement 2016-19, entitling him to personal/carer’s leave. C.H. sought to work mostly from home to minimise the risk of contracting COVID-19, which he believed would affect the chances of his wife’s successful pregnancy due to her medical condition. The Commission was required to interpret the term "exceptional circumstances" as used in clause 131(c) of the Agreement and decide whether C.H.'s circumstances fell within that category. The Commission concluded that C.H.'s circumstances did not constitute "other exceptional circumstances" for the purposes of clause 131(c) of the Agreement. The Commission held that "exceptional circumstances" meant circumstances that were out of the ordinary course, unusual, special, or uncommon, but not regularly, routinely, or normally encountered. The circumstances C.H. relied upon, namely the potential risk, delay, and increased costs of IVF treatment due to COVID-19 infection, were not exceptional because they were regularly encountered by couples undergoing IVF treatment since 2020. Further, the Commission held that the circumstances of C.H. were not exceptional on the basis that working arrangements often came into conflict with medical recommendations, and employers regularly made reasonable adjustments to accommodate particular needs. The Commission did not find that C.H.'s circumstances were exceptional, whether considered individually or in combination. As a result, the Commission did not order the restoration of annual leave taken instead of personal leave for this purpose. The Commission also declined to assess the fairness of the Home-Based Work Policy, as it was beyond the scope of its power to arbitrate.

Orders