Linda Farquharson v CCL Label Australia
[2024] FWC 670
•15 MARCH 2024
| [2024] FWC 670 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.65B - Application for a dispute about requests for flexible work arrangements
Linda Farquharson
v
CCL Label Australia
(C2024/768)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 15 MARCH 2024 |
Application to deal with a dispute over a request for flexible working arrangements – jurisdiction – whether change to working arrangements is for a “circumstance” in s 65 Fair Work Act 2009 – volunteer work – work life balance for employee aged over 55 years – jurisdictional objection dismissed
On 8 February 2024 Linda Farquharson (the applicant or Ms Farquharson) notified a dispute under s 65B of the Fair Work Act 2009 concerning a request for flexible working arrangements.
The respondent is CCL Label Australia (the respondent or CCL Label).
CCL label filed a response on 21 February 2024 in which it opposed the application and made a jurisdictional objection. The jurisdictional objection is that the dispute as notified is not a request for flexible working arrangements within the meaning of s 65 of the FW Act.
I conducted a conference of the parties on 26 February 2024 for the purposes of conciliating the dispute. CCL Label agreed to participate on the basis that the employer’s right to press the jurisdictional objection was preserved should the dispute not be settled.
The dispute did not settle.
On 27 February 2024 Ms Farquharson advised that she wished to proceed with her application and have the jurisdictional objection determined.
I determined that the jurisdictional issue be dealt with on the papers. Ms Farquharson and CCL Label were provided an opportunity to file written submissions.[1]
Facts
CCL Label is a label manufacturing business operating in the Barossa Valley. It produces labels for wine bottles.
Ms Farquharson is a graphic artist. She is a full-time employee working Monday to Friday. She works alongside a second graphic artist working in the business.
Ms Farquharson is also a volunteer to the South Australian Ambulance Service. Ms Farquharson usually volunteers to work with the Service one day per week, on Saturdays.
In September 2023 Ms Farquharson made a request that her roster of working days and hours be altered to accommodate the volunteer work. In order to provide herself with a weekend free of employment or volunteer work, Ms Farquharson proposed that she work full-time hours Monday to Thursday inclusive (with longer working days than her Monday to Friday roster), so that volunteer work would be able to be performed from Thursday night onwards.
Over the following three months the dispute remained unresolved at the workplace level.
Upon the employer advising in October 2023 and then confirming in February 2024 that it did not agree to the requested change, Ms Farquharson made an application under s 65B of the FW Act.
Submissions
On jurisdiction, CCL Label submit that work for the South Australian Ambulance Service is not a “circumstance’ within the meaning of s 65(1A) of the FW Act. Accordingly, CCL Label submit that the request made by Ms Farquharson was not a request under s 65 of the FW Act. It submits that as applications under s 65B can only be made in relation to requests which fall within the meaning of s 65, the Commission has no jurisdiction to hear and determine the application.
Ms Farquharson submits that her request is a request for a flexible working arrangement because she is above 55 years of age, and that her work with the Ambulance Service is for the public benefit.
Consideration
Section 65B provides:
Disputes about the operation of this Division
Application of this section
(1)This section applies to a dispute between an employer and an employee about the operation of this Division if:
(a)the dispute relates to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee; and
(b)either:
(ii)the employer has refused the request; or
(iii)21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 65A.
Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).
Note 2: Subsection 55(4) permits 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 section 55 (see section 56).
Resolving disputes
(2)In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.
FWC may deal with disputes
(3)If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.
(4)If a dispute is referred under subsection (3):
(a)the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and
(b)the FWC may deal with the dispute by arbitration in accordance with section 65C.
Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).
Representatives
(5)The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:
(a)resolving the dispute; or
(b)the FWC dealing with the dispute.
Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).
Section 65 provides:
Employee may request change in working arrangements
(1) If:
(a)any of the circumstances referred to in subsection (1A) apply to an employee; and
(b)the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(aa) the employee is pregnant;
(a)the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b)the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c)the employee has a disability;
(d)the employee is 55 or older;
(e)the employee is experiencing family and domestic violence;
(f)the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing family and domestic violence.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.
(2) The employee is not entitled to make the request unless:
(a)for an employee other than a casual employee--the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or
(b)for a casual employee--the employee:
(i)is, immediately before making the request, a regular casual employee of the employer who has been employed on that basis for a sequence of periods of employment during a period of at least 12 months; and
(ii)has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
(2A) For the purposes of applying paragraph (2)(a) in relation to an employee who has had their employment converted under Division 4A of Part 2-2, any period for which the employee was a regular casual employee of the employer is taken to be continuous service for the purposes of that paragraph.
Formal requirements
(3) The request must:
(a) be in writing; and
(b) set out details of the change sought and of the reasons for the change.
I note at the outset that it is not contested that Ms Farquharson has completed at least 12 months of continuous service immediately before making the request (s 65(2)), has made the request, that the employer has refused the request, and that the dispute over the request has not been resolved at the workplace level (s 65B (1) and (2)). Those jurisdictional pre-requisites have been met.
It is readily apparent from the language in s 65B(1)(a) that applications notifying a dispute under s 65B can only “relate to a request by the employee to the employer under subsection 65(1) for a change in working arrangements relating to circumstances that apply to the employee”.
The Commission has no jurisdiction to hear and determine applications made under s 65B concerning requests for flexible working arrangements unless the subject matter of the dispute is a request within the meaning of s 65.
For Ms Farquharson’s application to be within jurisdiction, s 65 requires a request to change working arrangements to be “because of” one of the circumstances referred to in subsection (1A). Subsection (1A) sets out the circumstances for the purposes of s 65(1).
Accordingly, it is not enough for Ms Farquharson to be able to show that her request is for a flexible working arrangement as commonly understood in social discourse. For her application to be validly made (in the sense of being within jurisdiction) her request must, as a jurisdictional fact, be because of one of the circumstances set out in subsection (1A).
Ms Farquharson’s request was not made, and the dispute not notified on account of pregnancy (ss (aa)), parental responsibility (ss (b)), caring responsibilities (ss (c) and (f)), disability (ss (c)) or family or domestic violence (ss (e)). Work with the Ambulance Service, whether administrative or providing medical assistance, does not fall within any of those categories, no matter how laudable or in the public interest.
However, it is not in dispute that Ms Farquharson is over the age of 55. She relies on ss (d) which provides a circumstance to be that “the employee is 55 or older”. Her application states that the reason for the request is that she is “55 or older”. The stated grounds include:[2]
“I have been a conscientious worker for the business for the past 30 years who is moving towards the end of my working life and believe I need this work/life/community balance.”
In her written submission, Ms Farquharson states that “the reason for my request was provided in my application, as a courtesy and for my work life balance as I approach retirement age”.[3]
Section 65(1) requires both subsections (a) and (b) to be satisfied. The fact that Ms Farquharson is over the age of 55 satisfies s 65(1)(a) because that is one of the circumstances set out in s 65(1A). A further jurisdictional fact is required by s 65(1)(b), being that the change in roster is requested “because of those circumstances”. Is Ms Farquharson advancing the roster change request on the ground of age?
According to the application, Ms Farquharson is doing so because at her age she seeks a better reconciliation between paid employment, work for the Ambulance Service and leisure time. That is, she is seeking a four-day working week with the respondent so that the remaining weekday can be available to work for the Ambulance Service and a two-day weekend remain available to her. Whatever their merit, these propositions appear consistent with the basis on which the request was first made at the workplace level and continues to be advanced.
Leaving aside merit, I am satisfied that there is a sufficient connection between the request and the fact that Ms Farquharson is 55 years or older. I am satisfied that the change has been requested “because of” one of the circumstances set out in s 65(1A). The required connection between the request and a defined statutory circumstance exists.
Accordingly, the application raises a dispute that can be notified under s 65B of the FW Act.
Conclusion
As the application falls within s 65B of the FW Act, the Commission has jurisdiction to hear and determine the dispute. The application will be relisted for directions on the merits if not otherwise resolved between the parties.
DEPUTY PRESIDENT
Hearing details:
On the papers
Final written submissions:
Ms Linda Farquharson, 4 March 2024
CCL Label Australia, 12 March 2024
[1] Applicant 4 March 2024; Respondent 12 March 2024
[2] F10C item 16
[3] Email 4 March 2024
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