CPSU, the Community and Public Sector Union v Department of Health and Human Services

[2015] FWC 4584

[2015] FWC 4584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements

CPSU, the Community and Public Sector Union
v
Department of Health and Human Services
(C2014/6672)

State and Territory government administration
COMMISSIONER BISSETT	MELBOURNE, 14 AUGUST 2015

Application for the Commission to deal with a dispute - change to flexitime arrangements - unreasonably withholding agreement.

[1] The CPSU, the Community and Public Sector Union (CPSU) has made an application for the Commission to deal with a dispute in accordance with the dispute settlement procedures of the Victorian Public Service Workplace Determination 2012 (the Determination).

[2] The dispute relates to proposed changes to the flexitime system at the Sunshine Housing Office of the Department of Health and Human Services (the Department) which would restrict staff using the flexitime system to work a nine day fortnight.

[3] On 25 March 2015 I issued a decision in relation to the dispute. 1 In my decision I stated:

[54] I am not satisfied that management have put forward in enough detail the work requirements such that the existing flexitime system needs to change. Similarly I am not convinced that employees have not unreasonably withheld their agreement, even on the basis of the limited information they had of the business needs.

[55] For these reasons I propose that the following occur:

1. Within two weeks of the date of this decision the Department is to set out in detail the work requirements of the area, how the current arrangement does not support those requirements and how the proposed flexitime arrangement will enable these work requirements to be met. This will be provided to the HSOs and the CPSU and will form the basis of discussions between the parties in accordance with clause 32.2.2(a);

2. Within two weeks of the receipt of the information in 1. above, employees who consider that they have personal/family circumstances such that the proposed arrangements will create difficulties for them will be required to articulate the difficulties, including what alternative arrangements they have considered and why these are not workable. Such information shall be treated confidentially by the Department and be revealed only to those in management who need to know for the purpose of resolving this matter. Part of that consideration of these submissions by the Department will include whether the needs of the employee can be accommodated under any alternative policies of the Department;

3. Consultation and discussion will occur between employees, their representatives and the Department in an attempt to reach agreement. If agreement cannot be reached the matter will be returned for determination under the current dispute. In such circumstances actual evidence will need to be called by management and the CPSU in an effort to have the matter properly determined.

[4] On 11 May 2015 the CPSU requested that the matter be listed for arbitration as parties could not negotiate a solution.

The Dispute

[5] The background to this dispute has been covered in my initial decision and I do not intend to traverse it again here

[6] The CPSU submits that the Department has breached clause 32.2.2(a) of the Agreement by trying to introduce changes to flexitime arrangements without obtaining agreement from affected staff. The CPSU states that the Respondent has failed to explain why operationally one flexiday per month can be accommodated but one per fortnight cannot. 2

[7] The Department submits that the CPSU has unreasonably withheld agreement under clause 32.2.2(a) of the Agreement and the proposed changes should be accepted and applied to staff.

The Agreement

[8] Clause 32 of the Agreement states:

32 HOURS OF WORK

32.1 This clause does not apply to Shift Workers whose ordinary hours of work are set out in clause 33 (Ordinary Hours of Work).

32.1.1 The ordinary hours of work for each Employee, except for casual or part-time Employees, will average 76 (exclusive of meal breaks), to be worked over an average of no more than ten days per fortnight.

32.2 Spread of Hours

32.2.1 Flexible Arrangement of Hours of Work: The ordinary hours of work shall, by agreement, be worked flexibly to best meet both the Employer’s work requirements and the Employee’s personal and/or family circumstances.

32.2.2 Arrangement of Hours:

32.2.2(a) The actual days and hours of work will be those agreed between the Employer and the Employee. Either party may seek to alter the days or hours of duty. Agreement to such alteration shall not be unreasonably withheld, taking into account the personal/family circumstances of the Employee, and the work requirements of the Employer. In the absence of agreement, the aggrieved party may utilise the dispute procedure in clause 11 (Resolution of Disputes).

32.2.2(b) The Employer must not require an Employee to:

32.2.2(b)(i) perform ordinary hours of work outside the times of 7.00am to 7.00pm on any weekday (the “span of hours”); or

32.2.2(b)(ii) perform ordinary hours of work on Saturdays, Sundays or Public Holidays.

32.2.2(c) In determining the days and hours of duty, both the Employer and the Employee accept that the Employee is eligible to use the flexibility of these arrangements to take time off by agreement, subject to meeting the specified leave requirement(s) and not unduly affecting the work requirements of the Employer. Agreement by the Employer will not be unreasonably withheld.

[underlining added]

Evidence

[9] Ms Zeina Haouchar, an employee of the Tenancy and Property Team at the Sunshine office gave evidence for the CPSU. Mr Paul O’Kelly gave evidence in the initial proceedings for the Department and provided further evidence in these proceedings.

CPSU

[10] Ms Haouchar gives evidence of how she personally uses her flexitime arrangements, the workload of the area and refutes some of the reasons provided by the Department for the change in arrangements.

[11] Ms Haouchar gives evidence that she uses flexitime to attend medical appointments, support her parents and to take her son to sporting activities, work commitments and other appointments. Ms Haouchar states that flexitime allows her to have a good work life balance.

[12] Ms Haouchar gives evidence that the inability to have adequate flexitime causes friction within the team dynamics as staff do not go out of their way to help each other as they have limited time. 3 Ms Haouchar further states that inability to accumulate more than 10 hours per fortnight creates animosity in the workplace as staff have to justify the hours they work or the reasons they need to take time off, resulting in staff simply taking sick or recreation leave to avoid justifying their circumstances.4

[13] Ms Haouchar further stated that, with a 9 day-fortnight, staff can use flexitime to attend appointments that clash with working hours and utilise their recreation leave or sick leave as a fall-back plan. 5

[14] Ms Haouchar gives evidence that it is in the interests of both staff and management to retain the current flexitime system as it fosters ‘team cohesion, staff productivity and [ensures] a balanced work-home lifestyle is maintained’. 6

[15] Ms Haouchar says that some of the matters raised by management justifying the change are not matters that had been raised with staff before, that some of these issues are already managed with the existing flexitime arrangements and that, in particular, the arrears report has improved. 7

[16] In cross examination Ms Haouchar confirmed that it was reasonable for management to look at all options including flexitime to manage workloads and service to clients 8 and that the proposed change was not very different to the current arrangement except that staff cannot utilise a 9-day fortnight but can have a day off per month.9

[17] Ms Haouchar agrees that the office is a busy office. Ms Haouchar confirms she was aware of the circumstances and reasons why the department wants to make a change to the existing flexitime arrangement. 10 She also confirms that the staff proposal put forward by the CPSU is basically a restatement of the current arrangement.11

[18] Ms Haouchar’s evidence is that she did not personally meet with management to explain her circumstances and her need for a 9-day fortnight, although she clarified that her concerns had been explained as part of the collective concerns.

The Department

[19] Mr Paul O’Kelly, the Residential Client Services Manager, gave evidence for the Department. He says that following the initial decision in this matter he put a proposal to alter the flexitime arrangements to staff on 2 April 2015 along with the rationale for that proposal. 12 The proposal provides for the continuation of the current arrangements including flexible start and finish time but limits the number of days off to one day per month or two half days per month.

[20] Mr O’Kelly says the CPSU provided a collective response 13 to the rationale provided by him. In this document it disputes most of the reasons given by Mr O’Kelly for the change. Attached to the collective response were six individual responses from employees where each set out why, in their own circumstances, they sought to retain the existing flexitime arrangements.

[21] Mr O’Kelly says he responded both to the general submission of the CPSU 14 and to each individual employee who had attached their individual response to the collective response.15 In the response to each individual Mr O’Kelly invited the employee concerned to discuss his or her individual circumstances with him in an effort to find an acceptable way forward.

[22] Mr O’Kelly says that no employee took up the opportunity to meet with him.

Consideration of the issues

Did the Department explain its work requirements?

[23] In my previous decision I found that the Department did not clearly articulate the work requirements of the office such that employees could better appreciate the rationale for the proposed change.

[24] I am satisfied that this has now been done. Whilst I appreciate that not all of the rationale for the proposal may hold up under scrutiny of each minute detail this is not the test required by the Agreement.

[25] I agree with the submission of the Department that a proposal to change existing flexitime arrangements should not be put forward for reasons that are capricious or unfair. I am satisfied in this case that the Department has legitimate reasons for seeking a change to the existing flexitime system. Whilst the reduction in staff from about 20 to eight has also seen a commensurate reduction in workload, I accept that a reduction in staffing levels does result in the loss of some flexibility in the ability to deploy staff as required and to effectively meet the competing demands on staff time. For this reason alone I accept that the reasons for the change are not capricious or unfair.

[26] I have considered the proposed flexitime system put forward by the Department. That proposal retains flexible start and finish times and most other aspects of the existing system. The fundamental change is a reduction in the number of days that can be taken as flex leave from one day per fortnight to one day per month. For this reason I do not consider the proposal overall to be unfair although I accept that it is viewed that way by the effected employees. The determination of justification for the change however needs to be determined objectively. Whilst the effects on employees are important considerations, fairness or otherwise cannot be viewed wholly through their eyes.

Have the employees unreasonably withheld agreement?

[27] Clause 32.2.2(a) requires that agreement to a proposed change not be unreasonably withheld.

[28] As stated in my original decision, it is clear that Mr O’Kelly was prepared to consider the individual needs of employees and try and find ways - though the Flexible Working Arrangements Policy in particular - to accommodate any legitimate needs of those employees.

[29] In my initial decision I indicated that, upon receipt of the Department’s proposal employees should ‘articulate the difficulties [with the proposal], including what alternative arrangements they have considered and why these are not workable.’ The purpose of this direction was to enable a full range of alternatives to be explored in an attempt to find a satisfactory alternative to the current flexitime system that might have met both the needs of employees and the Department.

[30] By not putting forward any alternative proposals, by not articulating how individual circumstances could not be met under the proposed change and by not accepting the invitation to meet with Mr O’Kelly to further explore how individual circumstance might otherwise be met the CPSU (and employees) has not indicated a willingness to engage in the process. The CPSU did nothing to explore if agreement could be reached. On the evidence the only proposition put by the CPSU in response to management’s proposal was the existing arrangement. An acceptable resolution to a matter in dispute such as this is often found when both parties are prepared to investigate possibilities.

[31] The individual submissions made by employees did not address (with some minor exceptions) why the proposal put forward by management was not workable and it appeared that, in some instances, staff had not considered whether the proposed new arrangements would meet their specific circumstances. Certainly no individual put forward any alternatives for dealing with their personal circumstances.

[32] For these reasons I am satisfied that employees unreasonably withheld agreement to the proposed change.

[33] I accept that employees would prefer to keep their existing arrangements but the Agreement clearly contemplates that such arrangements can be altered. There are obligations on both parties when such a change is contemplated. The process could have been conducted in a more satisfactory manner from the beginning. That mistakes may have been made and things might have been done better is no reason to not meet the obligations under the Agreement at the appropriate time. In saying this it is worth recalling that this dispute came about because the CPSU came to the Department with concerns at how the flexitime system was operating.

[34] I am satisfied that the CPSU and its members have failed to provide personal or operation circumstances such that a day off a fortnight is needed (as opposed to being the preference). The CPSU in its own evidence has confirmed that the work unit is very busy and requires flexibility. There is nothing that suggests that an employee’s medical appointments or family commitments or other matters as outlined in the individual submissions cannot be met under the proposal put forward by the Department.

Conclusion

[35] For all of these reasons I am satisfied that:

• The Department has sought to alter the arrangement of hours of duty pursuant to clause 32.2.2(a) of the Agreement;



• In doing so the Department indicated a preparedness to consider alternative proposals and/or the personal and family circumstances of affected employees;



• That agreement to flexitime arrangements as proposed by the Department has been unreasonably withheld by employees.

[36] Having found so I remind all parties of the provisions of clause 32.2.2(c). I also encourage employees, with the assistance of the CPSU if they chose, to enter into discussion with the Department on how their particular needs might be met if they cannot be met under the Department’s proposal. I also encourage parties to properly understand the proposal put forward by the Department.

[37] I would however strongly recommend that, if the Department does go forward with its proposal, that it firstly provide staff with notice of the changed arrangement and a definite date for the commencement of the revised flexitime and second, review implementation of the new arrangement in 12 months’ time.

COMMISSIONER

Appearances:

M. Price and W. Wyatt on behalf of the CPSU.

P. Clarke and N. Richmond on behalf of the Department.

Hearing details:

2015.

Melbourne:

June 24.

 1   [2015] FWC 1619.

 2   PN30.

 3   Exhibit A1 para 12.

 4   Ibid para 13.

 5   PN96-98.

 6   Exhibit A1, paragraph 15.

 7   Exhibit A1, paragraph 16.

 8   PN87-89.

 9   PN95.

 10   PN115-16.

 11   PN125.

 12   Exhibit DHHS3, attachment POK-3.

 13   Exhibit DHHS3, attachment POK-4.

 14   Exhibit DHHS3, attachment POK-6.

 15   Exhibit DHHS3, attachment POK-7.

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<Price code C, AG895510  PR569147>