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

[2015] FWC 1619

[2015] FWC 1619

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, 25 MARCH 2015

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

[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).

[3] The CPSU contends that the Department does not have the capacity to make the changes to the flexitime system without the agreement of the employees concerned. The CPSU relies on the provisions of clause 32.2, and in particularly clause 32.2.2(a) of the Determination. It says that at least five of the employees have not agreed to the change.

Background

[4] In 2006 a flexitime arrangement was introduced to the Sunshine Housing Office of what was then the Department of Human Services (the 2006 arrangement). The arrangement was introduced in accordance with the Department’s Flexitime Policy.¹ That arrangement allowed employees to work a flexitime system where they could accumulate extra hours worked above a standard day within certain parameters. Once seven (7) additional hours was accumulated staff could request a day off. 2 The maximum flex credit was 10 hours and any credit in excess of this at the end of the fortnight would be forfeited.

[5] This policy appears to have been amended slightly in 2009 (the 2009 arrangement), although this amendment has only come to light through this arbitration. The 2009 arrangement built some more rules around the operation of the 2006 arrangement (including the number of staff required to be on duty at any time and signing on and off protocols) though does not appear to have altered the fundamentals of the 2006 arrangement. The arrangement required staff to accrue time in advance of taking a day or half day off and that approval be sought and granted prior to taking the time off. The arrangement contained a review date of April 2010. 3 At the time this arrangement was entered into the Sunshine office had over 20 full time HSO employees.4

[6] As a result of the 2006 and 2009 arrangements, some employees at the Sunshine Housing Office have been working a 9-day fortnight. This has worked without any set roster for days off.

[7] Around 2009-2010 a restructure resulted in some staff and associated workload moving from the Sunshine office to Footscray. At the time of this dispute there are eight Housing Service Officers (HSOs) in the Sunshine Office to whom the 2009 arrangement applies.

[8] The Department now seek changes to the operation of the flexitime policy to enable it to match staffing to the operational needs of the Department.

The dispute

[9] In October 2014 the CPSU notified a dispute to the Commission in respect to proposed changes to the operation of the flexitime arrangements at the Sunshine Housing Office. In its notification the CPSU indicated that the dispute relates to clause 10 (Implementation of change), clause 32.2 (Spread of hours) and the dispute resolution clause of the Determination.

[10] The relief sought in the application was that the Department consult with the CPSU and HSOs and that the Department adhere to the requirements of clause 32.2.2 of the Determination.

[11] During the hearing of the dispute the CPSU clarified that the relief it seeks is that the Department adhere to the requirements of clause 32.2.2(a) of the Determination and that, in particular, the Department not introduce any change to the current arrangement at the Sunshine Office.

[12] 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]

[13] The CPSU says that the Department has breached the provisions of clause 32.2.2(a) by seeking to implement a change in working arrangements without the agreement of the employees concerned.

Evidence

[14] Evidence in this matter was given by Mr Paul O’Kelly, Residential Client Services Manager, West Division of the Department.

[15] Mr O’Kelly’s evidence was not contested. I accept he is a reliable witness.

[16] Mr O’Kelly says that around 15 August 2014 he was approached by the CPSU delegate and a CPSU official (Ms Castle) to discuss a concern that a HSO was accruing flex credits under the flexitime provisions and was losing those credits because they could not be utilised by taking time off within the time periods specified in the 2006 arrangement. Mr O’Kelly says that it was agreed, arising from this discussion, that the 2006 arrangement would be reviewed. 5

[17] Around 25 August 2014 Mr O’Kelly met again with the CPSU and discussed a revised flexitime arrangement. Following the discussion some changes were made to the proposed document with the final proposal being sent to the CPSU on 28 August 2014. 6

[18] Mr O’Kelly called a meeting with Sunshine HSOs that day and provided them with a copy of the proposed new arrangements. The memo outlined the rationale for changes to the 2006 arrangement and set out the proposed new arrangement which included a maximum flex credit of 10 hours, the requirement to have accrued 7 hours prior to the taking of a flex day, the taking of flex leave to be limited to one day per month or two half days per month and flex days only to be taken with prior approval. The HSOs raised a number of issues, the main one being the loss of the nine day fortnight.

[19] In September 2014 Mr O’Kelly and a representative from the Department’s People and Culture Branch met with Mr Price from the CPSU (who had taken over responsibility from Ms Castle) along with two members affected by the change. Mr Price subsequently sent a ‘revised’ proposal to Mr O’Kelly. That proposal did not require staff to accrue time prior to taking a flex day and allowed for one day off per fortnight. Mr O’Kelly’s view was that the proposal from the CPSU did not address the operational needs of the business and was of little difference to the 2009 arrangement.

[20] Further correspondence between the CPSU and Mr O’Kelly and various options put to HSOs failed to resolve the divergent views on how the existing flexitime system should be varied.

[21] Mr O’Kelly says that no Sunshine HSO raised personal or family issues as a reason for keeping the current arrangements until 19 December 2014. He says that he had sought more information from employees who have raised family issues as a reason to keep the previous arrangements to see if these could be accommodated within the Department’s Flexible Working Arrangements Policy.

[22] Mr Kelly also gives evidence of the operational needs of the Housing Office which he says supports the proposed change. 7

Submissions

CPSU

[23] The CPSU says that the 2009 arrangement was entered into in accordance with Department’s Flexitime Policy which in turn refers to clause 32.2.2(a) of the Determination. This being so it is necessary that the requirements for changing that policy be dealt with in accordance with the provisions of the Determination.

[24] The CPSU submits that the Department, and Mr O’Kelly in particular, has not followed the process set out in clause 32.2.2(a) of the Determination. The CPSU submits that Mr O’Kelly did not seek agreement from staff to alter the hours of work as agreed in the 2009 arrangement. Had he done so and agreement not been reached on an alteration it was the Department, as the aggrieved party, who should have notified the dispute. The Department has not followed this procedure.

[25] On this basis the CPSU submits that the Commission cannot make a decision in respect of clause 32.2.2(a) as the Department have not met the requirements of the clause, including notification of a dispute as the aggrieved party. In these circumstances the CPSU says that a dispute in respect of the clause has not been properly enlivened so the Commission lacks jurisdiction to deal with the matter.

[26] The CPSU also says that Mr O’Kelly has not provided any information to suggest that the existing 2009 arrangement is adversely effecting the work requirements of the area. A reduction in rental arrears (a key performance indicator for the group) that has occurred over the 2014 calendar year demonstrates that the arrangement is not having an adverse effect on the operational needs of the Department.

The Department

[27] The Department submits that it has consulted and sought the agreement of affected staff, that it has provided information to the affected staff on how the existing flexitime provision is adversely affecting the Department’s work requirements and says that the notification of a dispute pursuant to clause 32.2.2(a) is left to the ‘aggrieved party’, not specifically to the Department. The Department says that the dispute, therefore, is properly before the Commission.

[28] The Department also submits that the employees have not provided any alternatives to the current or proposed arrangement that address the Department’s concerns; they have not outlined their personal or family responsibilities that demonstrate a need to maintain the 2009 arrangement; and have not sought to access the Flexible Working Policy as a means of meeting their family responsibilities.

[29] The Department submits that the employees have unreasonably withheld their agreement to the change sought by the Department.

Jurisdiction

[30] As set out above, in notifying this dispute to the Commission the CPSU said that the dispute relates to the operation of clause 10 (Consultation) and clause 32.2 (Spread of hours) of the Determination.

[31] Clause 10 of the Determination deals with consultation over change. It is not necessary to set the clause out in detail but to note that, in addition to the provisions expected to be found in such a clause, it provides some indicative timeframes within which proposals should be provided and responded to by the parties to the consultation.

[32] Clause 11 of the Determination provides for disputes to be first dealt with at the workplace level. If this is not successful in resolving the dispute the matter may be referred to the Commission for conciliation and, if necessary, arbitration.

[33] I am satisfied that the dispute in relation to flexitime arises under the Determination through clauses 10 and 32.2. I am also satisfied that the CPSU, in notifying the dispute, has complied with the requirements of the dispute resolution procedure of the Determination. The matter has been subject to conciliation where it failed to settle.

[34] The uncontested evidence of Mr O’Kelly is that the CPSU first raised issues with him with respect to the operation of the 2006 arrangement. Mr Price for the CPSU did not address this important aspect in his submissions. As a result of the CPSU’s approach to him, Mr O’Kelly instigated a review of the 2006 arrangement (the existence of the 2009 arrangement not being raised until the CPSU filed it submissions for the arbitration of the matter).

[35] I am therefore satisfied that the CPSU first raised the issue of the operation of the flexitime arrangement with the Department. The evidence on this point is not disputed.

[36] While either party may be the first to raise an issue with the flexitime system under clause 32.2.2(a), it was the Department who put the first amended proposal to staff after the CPSU raised issues of concern with the existing arrangements. That the Department in this instance was the first to articulate some changes in writing and that proposal was not agreed to by staff does not make the Department necessarily the aggrieved party for the purpose of clause 32.2.2(a).

[37] If it is the case, as CPSU submits, that the aggrieved party is the one who first raised the matter, and the aggrieved party is the one that must notify the dispute to the Commission for the dispute to be validly notified under clause 32.2.(a), the CPSU first raised issues with the 2006 arrangement and it did notify the dispute. On this basis the dispute is validly before the Commission.

[38] For these reasons I reject the submission of the CPSU that the Department has not met the requirements of clause 32.2.2(a) or that it should be the Department who notify the dispute to the Commission to enable the Commission to deal with it.

[39] If I am wrong and it is necessary for the Department to notify a dispute in respect of clause 32.2.2(a), the Commission still has jurisdiction. The CPSU has notified a dispute to the Commission and that is the one now before the Commission. That dispute is in respect of clause 10 and Clause 32.2 of the Determination. Having so notified a dispute the Commission is not required to make a decision in relation to the dispute in the terms sought in the application. 8 The limitation on any decision made is that such a decision should not be inconsistent with the Act or the Determination.9

[40] I am therefore satisfied that the CPSU, in notifying the dispute, has properly enlivened the jurisdiction of the Commission and that I can deal with the matter by arbitration.

Consideration of the issues

Did the Department adequately explain its work requirements?

[41] The Departmental management (Mr O’Kelly) sent a memo to CPSU (which was to be provided to staff the same day) which outlined the Department’s proposed changes in the existing flexitime arrangement. This proposal came about following consultation with the CPSU. That proposal was further amended following the staff meeting. That amended proposal set out in some more detail the work requirements of the office.

[42] That amended memo alluded to the work requirements of the office by:

• indicating that at the time the flexitime system was introduced there were more than 20 staff working in the office and there were now nine;



• noting that staff being required to conduct home visits and attend VCAT hearings was having an impact on optimum staffing levels;



• indicating that the offices operational requirements had changed since 2006;



• indicating that the rationale for the review was to provide ‘all staff an equitable work life balance’ while continuing to support the operational needs of the office;



• stating that it was intended flexi days would only be available taking into account the impact on the office and the ability for work to be organised among existing employees. 10

[43] Whilst there is some indication in the memo as to the work requirements of the office that have led to a change - in particular the change in the number of staff and changed work arrangements of home visits and VCAT matters - there is a lack of detail from Mr O’Kelly of the extent of the drivers for change. These drivers have since been more clearly articulated in Mr O’Kelly’s evidence before the Commission.

[44] Given that CPSU instigated the review of the arrangements I accept that some of the changing business needs were identified by its members who then identified that the 2006 arrangement was not working. The uncontested evidence is that this included the loss of accrued time when it could not be used within the period specified in the 2006 or 2009 arrangement.

[45] I am satisfied on the evidence above that the Department did enter into consultation with the effected staff and their representative (the CPSU) after the CPSU raised issues with the flexitime arrangements. It is my opinion, however, that the Department did not meet the totality of its obligation under clause 32.2.2(a) to clearly outline the work requirements of the office. Had this occurred the proposed change could be better put into some context by the employees affected. My criticism of the Department is however tempered by the fact that the CPSU raised this issue, presumably at the request of its members who must have had some sense themselves of some need for change.

Have the employees unreasonably withheld agreement?

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

[47] The only proposal for change that has been articulated in the matter before me is that put forward by Mr O’Kelly.

[48] The uncontested evidence demonstrates that on 1 October 2014 Mr O’Kelly indicated to staff that, given the inability to reach agreement, ‘standard hours’ would be introduced from 20 October 2014. The email also advised employees (although not succinctly) that requests for flexible working arrangements to meet any personal or family commitments could be made in writing under the Flexible Working Arrangements Policy.

[49] The evidence further indicates that no employee raised personal or family issues until 19 December 2014 despite a clear invitation to do so on 1 October 2014. Further, a number of staff indicated a willingness to move to the proposed one day off per month arrangement.

[50] Whilst the CPSU provided unsworn statements from some staff as to why they wished to retain their existing arrangements this is not evidence that those employees have not unreasonably withheld their agreement to the proposed change. These are matters that should have been raised with the Department in August or September 2014 when the issue first arose.

[51] 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. That they provided nothing to him until 17 December 2014 indicates a failure on the part of staff to engage in the process designed to try and find an equitable solution to the needs of the business and their personal and family needs.

[52] Clause 32.2.2(a) of the Determination cannot be read in isolation of the rest of the clause. To this extent clause 32.2.1 is relevant - that is that ordinary hours of work must be worked flexibly to meet the employer’s work requirements and the employee’s personal or family work requirements. The agreement to be reached under paragraph 32.2.2 must be in the context of these dual obligations of clause 32.2.1. These obligations were perhaps not appreciated by employees who sought to protect what had been a long standing arrangement of a 9-day fortnight.

[53] The Determination clearly contemplates changes to the way in which hours of work are arranged. The provisions of clause 32.2.2 set up a mechanism for this to occur. That an individual likes working a 9-day fortnight and hence does not want any change to occur and puts forward no case that adequately addresses why change should not occur suggests that agreement to the change is being unreasonably withheld.

Conclusion

[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:

• 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);



• 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;



• 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.

[56] This process is required to occur over the next six weeks. The matter will be set for report back following that date. Either party may apply to have the matter brought back on prior to that date if the assistance of the Commission is considered necessary.

COMMISSIONER

Appearances:

M. Price on behalf of the CPSU.

J. Cooney and S. de Pedro on behalf of the Department.

Hearing details:

2015.

Melbourne:

March 5.

1 CPSU submission, attachment 3.

 2   Exhibit DHHS1, attachment PO-2.

 3   CPSU submission, attachment 2.

 4   Exhibit DHHS1, paragraph 32.

 5   Note that while a 2009 arrangement was tabled by the CPSU in its submissions all discussion on change that occurred prior to the hearing of the dispute, including by CPSU, related to the 2006 arrangement.

 6   Exhibit DHHS1, paragraph 18 and attachment PO-4.

 7   Exhibit DHHS1, paragraphs 10-14 and attachment PO-4.

 8 Section 599 of the Fair Work Act 2009.

 9 Section 739 of the Fair Work Act 2009.

 10   Exhibit DHHS1, attachment PO-3.

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