Michael Fogo v Boeing Aerostructures Australia Pty Limited
[2024] FWC 3037
•8 NOVEMBER 2024
| [2024] FWC 3037 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.65B - Application for a dispute about requests for flexible work arrangements
Michael Fogo
v
Boeing Aerostructures Australia Pty Limited
(C2024/3056)
| COMMISSIONER CONNOLLY | MELBOURNE, 8 NOVEMBER 2024 |
Application to deal with a dispute about the right to request for flexible working arrangements – whether sufficient nexus between request and circumstances – whether reasonable business grounds exist – application dismissed for want of jurisdiction.
On 14 May 2024, Mr Michael Fogo lodged an application for a dispute about requests for flexible work arrangements pursuant to s.65B of the Fair Work Act 2009 (the Act). The Respondent to this application is Boeing Aerostructures Australia Pty Limited (BAA).
Mr Fogo is 61 years of age and is preparing for retirement. He lives alone. He is concerned that when he retires, he will no longer have the benefit of social exposure and being in a workplace environment. And that because of the “dramatic change” of being in a workplace most days of the week to being at home most days, his mental health may be negatively impacted.[1]
To address these concerns, Mr Fogo made a request for a flexible working arrangement to his employer on 27 March 2024. He requests to work from home on Mondays and Fridays. He made his request because of his mature age, his intention to transition into retirement, to decrease any negative mental health effects retirement may cause and so he is able to decide when to retire.[2]
Mr Fogo works for BAA as a planning engineer. His role involves him reviewing and interpretating engineering plans so they can be implemented as part of BAA’s production process of aircraft body parts.
BAA refused Mr Fogo’s request on 17 April 2024, providing him written reasons that there were reasonable business grounds for the request to be refused.
Mr Fogo seeks that the Commission make an order granting his flexible work request pursuant to s.65C(1)(f) of the Act.
BAA has argued that the Commission does not have the power to make such an order because the application was not validly made and because of the reasonable business grounds on which the request was refused.
For the reasons set out below, I have not been satisfied Mr Fogo’s application has been validly made. Further, I am satisfied that, considering the material presented before me, it is appropriate that the grounds on which BAA has refused Mr Fogo’s request to be taken to have been reasonable business grounds.
Relevant Background
This is not the first occasion Mr Fogo has made a request for a flexible working arrangement. On 13 September 2023, he made a request for a flexible working arrangement that would enable him to work remotely on Mondays and Fridays. On 3 October 2023, he emailed his “Accommodations Request” for this flexible work arrangement indicating the reason for his request was he was 60 years old. BAA refused this request because of adverse impacts on business productivity, customer demands and operational delivery requirements.[3]
On 5 October 2023, Mr Fogo raised concerns with the reasons for this refusal and provided additional information about his request and why it could be accommodated. On 31 October 2023, Mr Fogo and his representatives discussed these concerns with BAA but were unable to reach agreement.
On 21 November 2023, Mr Fogo made a formal request (the First Request) for flexible working arrangements pursuant to section 65 of the Act on the basis that he was older than 55. This request was refused by BAA on 1 December 2023 on reasonable business grounds.
On 14 December 2023, Mr Fogo made an application to the Commission for the First Request to be considered under section 65B. I convened several conciliation conferences with the parties following this application, but they were unsuccessful in resolving the dispute. Mr Fogo initially sought the matter be determined. Directions were issued and a site visit of the workplace was conducted 22 March 2024. Prior to Mr Fogo filing submissions in reply, he discontinued this application.
On 27 March 2024, Mr Fogo made a new formal request (the Current Request) for a flexible working arrangement. The arrangement he is seeking is to work from home every Monday and Friday. The request is made because Mr Fogo is over 55 years of age and is seeking to transition to retirement.
On 12 April 2024, BAA met with Mr Fogo and his representatives to discuss this request. At the meeting, BAA proposed an alternative working arrangement of Mr Fogo working from home up to 3 days per month (inclusive of RDO’s and a further day). Mr Fogo did not accept this alternative proposal.
On 18 April 2024, BAA provided Mr Fogo with a letter refusing his request on reasonable business grounds and restating its alternative proposal.
Following unsuccessful discussions between the parties, on 14 May 2024, Mr Fogo made this application in the Commission. Mr Fogo’s application seeks that the Commission make an Order that his request for flexible working arrangements be accommodated.
Following a brief Mention where it was clarified the parties sought the matter to be determined by the Commission, directions were issued for the filing of submissions and evidence, to be examined at a Hearing on 12 August 2024.
The Hearing and Materials Presented
Mr Fogo was represented at the Hearing by the AMWU. Catherine Pase (of Counsel) appeared for the Respondent with leave of the Commission.
Mr Fogo filed written submissions in advance of his position. He attended the Hearing and gave sworn evidence, supported by 2 witness statements. AMWU Organiser Mr Tuddenham also provided a witness statement and gave sworn evidence at the Hearing in support of the Applicant’s position, as did Ms Melinda Sikk a co-worker from BAA.
The Respondent provided an outline of submissions along with witness statements from Mr Pratik Kapadiya and Mr Faisal Sraieldin, both of whom who gave sworn evidence in proceedings.
In preparation for the case, the parties accepted that the Commission’s site-visit conducted following Mr Fogo’s first application was relevant background to this matter.
In advance of proceedings, a Court Book of all material filed and relied upon in proceedings was circulated to the parties. The Court Book was accepted into evidence in its entirety at the commencement of the Hearing.
Legislation
Section 65(1A) sets out the circumstances in which an employee may request a change in working arrangements. It relevantly provides:
65 Requests for flexible working arrangements
Employee may request change in working arrangements
…
(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.
…
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.
Section 65A sets out the obligations of an employer which arise when an employee makes a request under s.65(1). The section provides:
65A Responding to requests for flexible working arrangements
Responding to the request
(1) If, under subsection 65(1), an employee requests an employer for a change in working arrangements relating to circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days.
(2) The response must:
(a) state that the employer grants the request; or
(b) if, following discussion between the employer and the employee, the employer and the employee agree to a change to the employee’s working arrangements that differs from that set out in the request—set out the agreed change; or
(c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).
(3) The employer may refuse the request only if:
(a) the employer has:
(i) discussed the request with the employee; and
(ii) genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and
(b) the employer and the employee have not reached such an agreement; and
(c) the employer has had regard to the consequences of the refusal for the employee; and
(d) the refusal is on reasonable business grounds.
Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5).
(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to a change to the employee’s working arrangements if the employer would have reasonable business grounds for refusing a request for the change.
Reasonable business grounds for refusing requests
(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:
(a) that the new working arrangements requested would be too costly for the employer;
(b) that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
(d) that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested would be likely to have a significant negative impact on customer service.
Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).
Employer must explain grounds for refusal
(6) If the employer refuses the request, the written response under subsection (1) must:
(a) include details of the reasons for the refusal; and
(b) without limiting paragraph (a) of this subsection:
(i) set out the employer’s particular business grounds for refusing the request; and
(ii) explain how those grounds apply to the request; and
(c) either:
(i) set out the changes (other than the requested change) in the employee’s working arrangements that would accommodate, to any extent, the circumstances mentioned in subsection (1) and that the employer would be willing to make; or
(ii) state that there are no such changes; and
(d) set out the effect of sections 65B and 65C.
Genuinely trying to reach an agreement
(7) This section does not affect, and is not affected by, the meaning of the expression “genuinely trying to reach an agreement”, or any variant of the expression, as used elsewhere in this Act.
Section 65B of the Act makes provision for parties in dispute about requests for flexible working arrangements to refer the matter to the Commission to resolve the dispute. Section 65C of the Act sets out when and how the Commission can resolve the dispute by arbitration.
The principles applicable to powers of the Commission to deal with disputes about flexible working arrangements were considered by the Full Bench in Jordan Quirke v BSR Australia Pty Ltd[4] (Quirke). In Quirke the Full Bench identified five requirements that must be met before the Commission can arbitrate a dispute about a request for flexible working arrangements. Relevantly, the requirements are summarised below:[5]
1. Any of the circumstances in section 65(1A) must apply to the Applicant. It must be a present circumstance relevant at the time of the request.
2. The employee’s desire for changed working arrangements must be because of the relevant circumstances in s.65(1A) and the request for a change in working arrangements must relate to it as required by s.65(1)(b).
3. The employee has a minimum period of service of 12 months.
4. The request is made in writing.
5. The request must set out the details of the change sought and the reasons for the change.
In relation to section 65(1), both subsections (a) and (b) must be satisfied. There must be a sufficient connection, a ‘nexus’, between one of the circumstances set out in s.65(1A) and the request.
The question of this nexus has been considered in recent decisions of the Commission. In Farquharson v CCL Label Australia, Deputy President Anderson considered a similar request to the present matter, identifying at [26]:[6]
“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?’
In Lloyd v ANZ Banking Group Limited (Lloyd),[7] also considering a request of an employee on grounds of them being over 55 years of age, Deputy President Masson reflected that the legislative background of the provisions at s.65(1) are substantially the same for as originally introduced by the Fair Work Amendment Act 2013 (Cth). The Explanatory Memorandum that accompanied the legislation provides, at [27]-[28], that:
“The terms of new subsection 65(1) make clear that the reason the employee would like to change their working arrangement is because of the particular circumstances of the employee. That is, there must be a nexus between the request and the employee’s particular circumstances.”[8]
The Deputy President then stated at [51]:
“The requirement for a ‘nexus’ to be established between one of the ‘circumstances’ in s 65(1A) and the request suggests that more is required than simply identifying that the employee satisfies one of those circumstances. In my view there needs to be an objective and rational connection between the circumstance of the employee and the request.”[9] (emphasis added)
I concur with this view and will rely on these authorities in the present matter.
A further relevant issue that has also been considered by the Commission is what constitutes reasonable business grounds for an employer to rely on in refusing such requests. In Ridings v FedEx Express Australia Pty Ltd, Deputy President Lake observed at [65]:[10]
“Although the legislation does not limit what reasonable business grounds mean, the interpretation and wording of this provision seems to require the employer to demonstrate a likely detriment to the business if they wish to refuse a flexible working arrangement. If there is no detriment to the Respondent in accommodating the request, it is in the employer’s interest to accommodate the employee in encouraging employee retention and provide job security.”
Section 65A(6) requires that an employer must explain how the reasonable business grounds sought to be relied on apply to the Applicant’s request.[11] The role of the Commission in such matters is to consider whether, on an objective basis, the Respondent had reasonable grounds for refusing the request. As Commissioner Johns observed in Fyfe v Ambulance of Victoria[12], citing Vice President Lawler’s decision in ASU v Brimbank City Council[13],:
“[15] Almost all requests [for flexible work arrangements] will result in some cost, loss of efficiency or adverse impact on customer service, even if only very small. Any change to hours will see the employee unavailable at a time he or she would previously been available with the need (and consequent resource cost) for another employee to deal with urgent requests or telephone calls that the requesting employee would otherwise have taken, or the need to redo a roster or the like. If it was sufficient for an employer] to simply point to any cost or business difficulty, however small, and then rely upon that as constituting a reasonable ground to refuse the request, the practical right intended [the right to request flexibility] would become illusory. Such an approach is inconsistent with the flavour of clause 20 read as a whole and inconsistent with the principles of construction.”
As identified in Fyfe, the onus of establishing reasonable business grounds rests with the Respondent who “must point to costs or adverse impact over and above the inevitable small adverse impacts associated with any material request that is sufficient to outweigh the employee’s personal considerations in the legitimate pursuit of a better work life balance” (emphasis added).[14]
I concur with this view and will adopt the same approach to my objective assessment of the employer’s ‘reasonable business grounds’ in the present circumstances.
Key Issues
In the present matter there is no contest that Mr Fogo has completed the minimum employment period, made his request in writing, and sought to set out the details of the change, with reasons, to give flexibility to his working arrangements, thus meeting requirements 3-5 as set out in Quirke.
What is contested is, firstly, whether Mr Fogo has requested a flexible work arrangement because of one of the circumstances in 65(1)(A) and, secondly, if BAA has reasonable business grounds to refuse his request. These are the two key issues in this matter.
Issue One – Jurisdiction.
Mr Fogo is seeking to change his working arrangements because he is older than 55 (per section 65(1A)(d)) and because he is seeking to transition to retirement. The nature of the change he is seeking is to no longer attend the workplace on Mondays and Fridays of each week and to perform his work remotely on both these days.
The Respondent’s position is that Mr Fogo’s application is not valid because there is not a sufficient “nexus” between him being older than 55 and working remotely on Mondays and Fridays. They argue that the “particular circumstances” advanced by Mr Fogo to provide the basis of his request, being his intention to retire; mental health; and challenges of living alone are not “sufficiently connected” to his request to work from home on Mondays and Fridays.
Mr Fogo rejects this submission, calling it “pedantic”, and maintains the Commission can be satisfied the jurisdictional requisites have been met. He seeks the Commission make an order granting his flexible working arrangement request.
Issue Two – Does BAA have reasonable business grounds to refuse the request?
In circumstances such as this where a request has been refused, the Commission has power under s.65C(1)(b) to make:
“(i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or
(ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds”
Section s.65C(1)(f)[15] empowers the Commission to:
“(i) an order that the employer grant the request; or
(ii) an order that the employer make specified changes (other than the requested changes) in the employee’s working arrangements to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a).”
In considering Mr Fogo’s request, the Commission must assess the grounds on which BAA has refused his request as a threshold issue. If I am satisfied BAA’s grounds for refusal should be taken as having been reasonable business grounds, Mr Fogo’s application must be dismissed. If I am not so satisfied, the provisions of s.65C are to be applied.
The grounds which BAA rely on to refuse Mr Fogo’s request include the change would likely result in a significant loss of efficiency or productivity; have a significant impact on internal customer service and be impractical (or simply not an option) for BAA to change the working arrangements of other employees to accommodate the arrangement.
Mr Fogo does not accept BAA have provided reasonable business grounds to refuse his request. His position is that BAA have not established the working arrangements he is seeking will result in a significant loss in efficiency or productivity. Further, that under the proposed arrangements, Mr Fogo is most likely to perform his current role from home with little impact on the operations of the Respondent.
I have set out below the evidence and submission of the parties on each of these issues in turn along with my considerations.
Issue One
The Applicant’s Case
Mr Fogo submits the required nexus identified by the authority in Quirke between his circumstance (being 61 years of age and beginning to transition to retirement) and his request for flexible working arrangements is beyond question. He submits, he is beyond 55 years of age per s.65(1A)(d) and has made his request specifically because of this and the necessity of him retiring from work and transitioning into retirement.
Mr Fogo argues that as a person living alone whose work provides him a degree of social exposure, he is concerned that his mental health may be negatively impacted in retirement. This is because his work will no longer be a source of social exposure as he will be at home most days of the week in retirement. He has made his request because he is seeking to have a smooth transition into retirement with the least possible negative impact on his mental health by gradually adjusting to not being in the workplace. He further submits that being able to work from home two days a week will enable him to make the decision when to retire. This is because the flexible work arrangement will enable him to practically assess the impact of reduced social exposure on his overall circumstances and mental health.
Mr Fogo argues that his request and the reasons for it are entirely consistent with those envisaged by the legislature when it extended the provisions of s.65B to mature age workers.[16] Particularly, that an obvious interest of mature age employees is their proximity to retirement and their desire to make the transition from the workforce as smooth as possible.[17]
He identifies that in Quirke the Full Bench did not elaborate on how the necessary ‘nexus’ should be applied in other employment circumstances. Mr Fogo argues the Commission should confine its consideration to the ordinary meaning of the words “because of” and “relate to” identified in Quirke at paragraph [23] and provided for in s.65(1)(b). It should not take a pedantic approach as suggested by the Respondent, but rather be satisfied that Mr Fogo has made his request because of his mature age and that this request relates to his transition to retirement.
It is his submission that this approach is also consistent with the objects of the Act at s.3(d) and 2008 Explanatory Memorandum.[18] Mr Fogo also identifies a recent decision of Deputy President Anderson in Farquharson v CCL Label Australia[19] (CCL Label) where the Deputy President was satisfied a sufficient nexus existed in circumstances where Ms Farquharson was over 55, “moving toward the end of [her] working life” and seeking to accommodate her “work life balance as I approach retirement age”.[20]
In this case, Mr Fogo argues the Deputy President identified the key consideration is whether the request is being advanced because of the Applicant’s age for the Commission to be satisfied the necessary ‘nexus’ is established. He submits he is requesting to work from home Monday and Friday because he is over 55 and that, therefore, the Commission can be satisfied it has jurisdiction to determine the dispute.[21]
The Respondent’s Case
BAA does not accept that there is a sufficient “nexus’ between working remotely on Mondays and Fridays and Mr Fogo being over 55 years of age. It is their position that the authority in Quirke and the Explanatory Memorandum supporting these provisions require Mr Fogo to go beyond simply demonstrating he is older than 55.[22] In particular, they emphasise the following from the 2013 Explanatory Memorandum at [28]:
“The terms of new subsection 65(1) make clear that the reason the employee would like to change their working arrangement is because of the particular circumstances of the employee. That is, there must be a nexus between the request and the employee’s particular circumstances.
…
It would be expected that documentation relating to the particular circumstances of an employee would be addressed in discussions between employers and employees.”
The Respondent argues, the additional information Mr Fogo has provided includes three reasons to support his request. First, that he intends to retire in the future. Second, that his request for flexible working arrangements will (if granted) provide him the opportunity to experience what retirement will be like, enabling him to determine when to retire. Third, that as a person living alone transitioning to retirement will be more beneficial to Mr Fogo than retiring without any transition.
With regard to Mr Fogo’s intention to retire, the Respondent argues he has not provided any indication or commitment about a timeframe for when he intends to retire. As Mr Fogo is presently 61 years old, they identify this could be when he reaches 67 years old. On this basis, they submit there is no nexus between his request to work from home Mondays and Fridays and his intention to retire at some point in the future, possibly 6 years from now.[23]
With regard to Mr Fogo’s mental health and the impact of reduced social exposure retirement will have on him, the Respondent submits there is no evidence presented to the Commission on which it can safely make findings about Mr Fogo’s mental health. Furthermore, they identify that it is unclear how working virtually Mondays and Fridays will provide Mr Fogo the opportunity to experience what retirement will be like as he will still be working full-time. It is their position that “[t]his is not at all akin to the state of retirement or a transition to retirement, whereby Mr Fogo will not be working at all”.[24]
The Respondent does not accept Mr Fogo’s assertion that by not being in the workplace on Mondays and Fridays he will have the opportunity to experience what retirement will be like. The Respondent questions how this can be the case if he will still be fully engaged and performing all his work, albeit “electronically”. Moreover, they suggest if Mr Fogo was genuine in his desire to experience an environment with reduced social exposure, he would have given more proper consideration to BAA’s alternative accommodations offer.
In relation to Mr Fogo’s living arrangements, the Respondent submits these are not a circumstance of Mr Fogo being over 55 years of age.
The Respondent makes the point that a transition to retirement would be working reduced hours or days, not just working from home Mondays and Fridays. They identify this was the case in CCL Label where Ms Farquharson’s request was to change her hours and days of work from full time Monday to Friday, to full time Monday to Thursday. In that case, the request was made to enable Ms Farquharson to have a weekday free to undertake volunteering work for the Ambulance Service on Friday, leaving her weekends free.[25]
The Respondent submits Mr Fogo’s circumstances are clearly distinguished from those in CCL Label. They argue that unlike in that case, Mr Fogo is not seeking a better work, life or community balance. He is seeking to change the location from where he works on Mondays and Fridays – seeking to work virtually on those days. He is not seeking to work less hours, or less days, both of which would be more compatible with a transition to retirement.
Their position is that Mr Fogo has not satisfied the second requirement in Quirke of a ‘nexus’ between his circumstances and his request and that his application should be dismissed for want of jurisdiction.
Consideration
As indicated at [30] above, when considering the second requirement in Quirke for a ‘nexus’ to be established between one of the circumstances in s.65(1A) and the request, I concur with the decision of Deputy President Masson in Lloyd v ANZ Banking Group Limited that there needs to be an objective and rational connection between the circumstances of the employee and the request.
In Lloyd the Deputy President helpfully illustrates two hypothetical examples. One, a full-time employee with caring responsibilities for a school aged child every second week due to custody arrangements requesting reduced working hours to allow them to drop off and pick up their child from school. In this example, a clear nexus is established between the request and their working arrangements with respect of every second week they have custody of their school aged child.[26]
In another example, an employee has incapacity with respect to their ‘mental ability’ that meets the definition of ‘disability’ and makes a request for reduced working hours. The request is made without any medical evidence to support the request beyond their meeting one of the circumstances in s.65(1A). In this example, the Deputy President considered the absence of more information and/or accompanying medical information would lead to a conclusion that there is not an objective and rational assessment between the circumstances and the request. Contrasting this to an employee with a disability who makes a request to reduce their work hours and work from home two days per week to receive verified in home treatment related to their disability. In this case, an objective rational connection between the request and circumstance is readily apparent.[27]
In the present case, Mr Fogo’s circumstance and his request can be simply summarised. He is over 55 years of age and argues that consequently he is at a stage in his working life where he is beginning to consider retirement but has not yet made the decision to retire. He also lives alone and relies on work for social exposure. He is concerned that his mental health may suffer in retirement because he will not have the benefit of the social exposure and connection that comes from work. Because of his age and circumstances, he is seeking to work from home on Mondays and Fridays to transition to retirement. Further, he argues that this will help him to determine when to retire.
I consider it uncontroversial that employees aged 55 years and over are at a stage in their working life when they are beginning to consider retirement. Variously, employees in this cohort are nearing the age when they can access pension and superannuation entitlements. Furthermore, that it will generally be the case that they have more years in the workforce behind them than ahead of them. I accept Mr Fogo is one of these employees because of his age, being 61 years old. I also accept that because of his circumstances he is seeking to transition to retirement.
The difficultly, however, is how Mr Fogo’s particular request to work from home on Mondays and Fridays relates to these circumstances. Consistent with the decision of the Deputy President in Lloyd, it is my view that I must be satisfied there is an objective rational connection between the request and his circumstances.
The principal argument Mr Fogo advances in support of the “nexus” between his request and his circumstances is that working from home 2 days a week will allow him to transition into retirement. Enabling him to adjust to the negative impacts of the reduce social exposure of not being in the workplace on those 2 days.
Critically, however, Mr Fogo does not specify when it is he intends to retire or even seek to give his employer any indication when he will be able to decide to retire if his flexible working arrangement is accommodated. As a person of 61 years of age, this may be 5 years or more from now. This being the case, it is difficult to see how any nexus or proximate connection can be maintained between a request to work from home now and a still-to-be-determined decision to retire in the future.
Mr Fogo has also not presented the Commission with any medical evidence or independent assessment to advance his proposition that when he retires the reduced social exposure of being in the workplace less (or not at all) will have a negative impact on his mental health. The strongest argument he advances is that it “may” have this negative impact.
I accept there is no question that entering retirement is a significant event. However, it can have both positive and negative impacts. I also accept that one of the impacts of retirement may be a reduced social exposure. Furthermore, that it is not uncommon for employees nearing or entering retirement to take steps to build their social connection beyond the workplace to aid their transition into retirement.
In CCL Label, the Applicant’s submissions included that her request for reduced working hours and days would provide an ability to undertake volunteering work on Friday’s and enjoy her leisure on the weekends.
Mr Fogo makes no such connection. His argument is that he should be allowed to work from home two days a week to adjust to not being in the workplace as part of his transition into retirement. Apart from him living alone, which I accept is not a circumstance that arises because he is over 55, he fails to advance any evidence to support a conclusion his mental health will be negatively impacted by not being at work.
Nor does he suggest that he is proposing to take steps to reduce his perceived potential negative impact by building his social network beyond work if his request is granted.
It is also difficult to see how this could be the case, given Mr Fogo’s submissions, that while working from home he will perform his normal work, with minimal impact or inconvenience to the Respondent. Further, that he will be available to attend the Respondent’s premises at short notice, if and, as required. Mr Fogo’s evidence supports this conclusion. Mr Fogo’s evidence is that working from home will involve him doing his normal work and interacting with colleagues as required, albeit in a digital environment.
This being the case, it is not clear to me what will have changed in Mr Fogo’s circumstances apart from his location and the absence of a commute, that will enable him to transition to retirement. Or enable him to determine how retirement will impact him and his mental health, to help him decide when to retire.
As identified in Lloyd, there must be an objective rational connection between the circumstances and the request, and it must be supported by evidence where necessary.
It follows from the above that I am not persuaded that there is an objective rational connection between Mr Fogo’s age (of 61) and his flexible working request. As such, I do not consider Mr Fogo has made a request within the meaning of s.65(1) of the Act. Therefore, there is no dispute capable of being arbitrated by the Commission under s.65B(4)(b) of the Act and his application should be dismissed.
For completeness, and should this conclusion be incorrect, I would still decline to issue the order sought by Mr Fogo for the reasons set out below.
Issue Two
The Applicant’s Case
Consistent with the authorities I have identified above at [32]-[35], Mr Fogo’s position is that to rely on s.65A(5) of the Act the onus of establishing reasonable business grounds rests with the Respondent, who must prove the new working arrangements would be likely to result in a significant loss in efficiency or productivity.[28]
Mr Fogo accepts that it is evident from the Respondent’s refusal letter that granting his request will result in a small loss of efficiency and have some impact on customer service. He argues this impact is not enough to establish reasonable business grounds for BAA to refuse the request.
Mr Fogo’s position is that performing his work from home two days a week will not have any significant impact on the quality of his work or his productivity. Nor will it have any impact on his competence or his efficiency, and his capacity to meet BAA’s needs and expectations.
He asserts that performing his work overwhelmingly involves him working online using computer-based tools and programs. That his work involves him applying his skills and expertise with engineering guidelines and specifications with new engineering planning documents for new projects and/or existing plans, projects or recommendations. That if he engages with colleagues, he does so online and that whether he is at home or at work, will have no, or little impact on BAA.
He argues the Respondent fails to identify any significant adverse impact that outweigh his personal circumstances that should lead the Commission not to grant his request.
Mr Fogo’s position is supported by the evidence of Ms Melinda Sikk and Mr Nathan Tuddenham. Ms Sikk has been a fabrication operator for the Respondent for over 14 years, including working on the same projects Mr Fogo’s performs his planning role (the 787,777 and 737 winglets). Her evidence is that in this time she has never had occasion to have a discussion with a planner (such as Mr Fogo) during her daily work schedule. If she had occasion to raise planning issues, they were able to be resolved by her team lead, manager or a shop floor Manufacturing Quality Engineers (MQE).[29]
Mr Tuddenham is Mr Fogo’s AMWU Organiser, but also a former employee of the Respondent. Mr Tuddenham’s evidence supports that of Ms Sikk and Mr Fogo. In particular, he also submits that operators (such as Ms Sikk) never, or should never, have went directly to planners such as Mr Fogo to request assistance. Rather, that an operator’s Team Lead or Manufacturing Manager would generally be able to resolve issues raised. If not, then the Team Lead would raise a ShipSide Action Tracker (SAT) and a note on the online call board to indicate the urgency of the issue. If urgent, the issue would be referred to a shop floor MQE whose principal role is to interact with shop floor personnel. Their role is to address any issues, defects, SATs and other production line stopping issues to ensure the progress of production.
Mr Fogo is a MQE Planner, not a shop floor MQE. Mr Tuddenham’s evidence is that Mr Fogo would hardly ever interact or be required to interact with shop floor personnel. He supports Mr Fogo’s position that any requirement for him to engage with shop floor staff can, and in his experience has been, always done online.
Furthermore, that SATs usually very clearly set out what is required to be done by whom. He is not aware of, or witnessed, an occasion when a planning MQE has been required to present on the shop floor to respond to an issue.[30]
Mr Fogo’s evidence is that he is employed as a Quality Assurance Planner (QAP), working within the MQE role presently engaged in work related to the manufacture of 787, 777 and 737 aircraft winglets. Prior to manufacture, projects and/or parts must have approved manufacturing plans. His role involves him using computer tools to review these operator plans against engineering models and/or specifications to ensure compliance. If the plan meets compliance, he certifies it for production to begin. If it does not, he will make the necessary adjustments to the plan for it to meet requirements. His work is largely done online using computer-based tools and methods of communication. It can involve him contacting the operations planners, his Team Leader or Manager for further particulars, which he does using his phone or computer.
He accepts his role involves him performing work as part of the Respondent’s SAT process. A SAT is an online process used by operators. It is used to initiate improvements to the manufacturing process or part being manufactured, and to address production constraints and line stopping issues. Line stopping issues are critical and stop production.
Mr Fogo’s evidence is that critical production stopping events rarely occur. Since 2011 he recalls less than 20 such incidents. In January 2024, he identifies 4 line stopping issues that related to planning requiring resolution. Further, that he dealt with each of these issues online, without any in person interactions. In his experience, this is overwhelmingly the case with most SAT issues. He accepts that on 23 October 2023, he addressed a SAT online, that also required in person interaction on site to be resolved.
His position is that his role does not require onsite attendance on a regular basis to be performed productively, efficiently and effectively. He maintains he is not in a role that requires him to manage or supervise other members of staff. That he currently does not have in person interaction with colleagues, other engineering or production staff. That he will continue to perform all these functions, including working with his “buddy planner” and be available and contactable to assist as required and requested while working from home on Mondays and Fridays.
Furthermore, that his attendance at the Respondent’s premise on Tuesdays, Wednesdays and Thursdays coincides with the current practice of meetings to discuss the 787 and 777/737 projects that he is required to attend. That if his request is granted there will be no impact on his ability to attend these meetings. Finally, that there are at least 2 other QAP planners who could be available to support the Respondent in an emergency, such as a rare line stopping event, if he were off site.
A summary of Mr Fogo’s position is that BAA have not established that the flexible working arrangements he is seeking will result in a significant loss in efficiency or productivity. If his request is granted, he will continue to perform his current role from home in the same capacity, for the same hours with little impact on the operations of the Respondent. He submits the Commission should make an order granting his request on this basis.
The Respondent’s Case
The Respondent’s position that s.65(5) of the Act sets out a non-exhaustive list of circumstances that can amount to “reasonable business grounds” for refusing a request for flexible working arrangements. That its non-exhaustive nature is legislatively intended to reflect the diversity of business needs and operations.And that the standard of “reasonableness” imposes an obligation on the Commission to make an objective assessment of the grounds provided.[31]
BAA’s grounds for refusing Mr Fogo’s request are that the arrangements would be likely to result in a significant loss of efficiency or productivity; have a significant impact on internal customer service; and be impractical (or simply not an option) for BAA to change the working arrangements of other employees to accommodate the arrangement. They also provide further information that its reasons for refusal also related to the nature of Mr Fogo’s planning role, its desire to capitalise on his experience and expertise considering changed business circumstances since the lockdowns associated with the COVID-19 pandemic.
The Respondent accepts what is required of the Commission by the authorities is a balancing of Mr Fogo’s request and desire to transition to retirement with BAA’s commercial and operational imperatives. It is their position that the grounds BAA has provided for refusing Mr Fogo’s request are sound and reasonable, and on this basis, they maintain his application should be dismissed.
In the event the Commission finds BAA did not have reasonable grounds to refuse the request, BAA submits the Commission should still not grant the request considering how accommodating BAA has been to Mr Fogo throughout this process. Particularly, with regards to their efforts in attempting to reach a compromise and proposing sustainable suitable alternative arrangements that have consistently been refused.
BAA’s case is supported by written submissions and the witness statements and sworn evidence of Mr Pratik Kapadiya and Mr Faisal Sraieldin. BAA’s principal position is that its grounds for refusal, objectively considered, are completely sound and reasonable on four grounds.
Firstly, the nature of Mr Fogo’s role as a planner in the engineering team. This includes an expectation that planners are factory facing and available to efficiently and effectively engage and collaborate with other team members working onsite. That it is objectively reasonable for BAA to require full-time onsite attendance from Mr Fogo given the nature of his role and its important interface with the engineering and production teams. That granting Mr Fogo’s request would result in two consecutive days without the opportunity for any in person interaction.
BAA does not accept that Mr Fogo’s role is solely virtual or electronically based. They submit a requirement of his position includes acting as a conduit between the design and development, and the operations department. That he is required to actively engage with colleagues. That these interactions are not always planned or static. That they can be needed and arise in an “ad-hoc” way, and may involve elements – like hand demonstrations, that cannot be done virtually. Further, BAA has made the deliberate decision to locate its planning team near the shop floor production team so they can be efficiently and effectively accessible to production staff and engineers if required. That Mr Fogo’s work is not done in isolation, but rather as part of a buddy system wherein he is required to collaborate. BAA’s position is that not being in the workplace on Mondays and Fridays is a detriment to Mr Fogo being able and available to perform these roles.
Secondly, that Mr Fogo is only one of two planners at BAA with full QAP authority and that he has extensive experience and expertise across its commercial fabrication programs. This being the case, they argue his absence from the workplace may negatively impact BAA’s operational capacity, detrimentally impacting its operations. Further, that while contingency plans can be put in place to manage Mr Fogo’s absence from work (on leave or ad hoc remote workdays) these interim arrangements are not sustainable for two days per week, every week, over a long-term period, conceivably years.
Thirdly, that a key aspect of Mr Fogo’s role is efficiently and effectively responding to production constraints and line stopping activities which are unpredictable in nature. That, given this, it is objectively reasonable for BAA to require Mr Fogo to be onsite in a full-time capacity to ensure he is available to respond to these issues and play his role managing and working to avoid significant detrimental impacts to BAA’s operations. Moreover, that in the event of a SAT or line stopping event occurring, it is BAA’s expectation that its planners physically be available to attend SAT related meetings.
Fourthly, that since the COVID-19 pandemic BAA has increased its production rate 900%. This means more work for planners, and more new members of staff with less experience. This in turn needs more need for experienced staff members like Mr Fogo to be available and easily accessible to support new workers on each day of the week.
With respect to the alternative accommodations offer, BAA submits it has proposed Mr Fogo work from home on RDO’s and on an extra day per month. They submit this provides him the opportunity he presently does not have to begin transitioning to reduce time in the workplace to help his transition to retirement. That this proposal is sustainable and can be implemented in a manageable way without risks to BAA operations, and its commercial imperatives.
Consideration
On the material before me, there is no question or suggestion that BAA has not properly considered and responded to Mr Fogo’s request. Nor is there any contention BAA has not discussed Mr Fogo’s request with him and his representatives, and genuinely tried to reach an agreement. BAA does suggest Mr Fogo’s consideration and engagement with its alternative accommodations offers has been less than genuine. For the reasons set out below, it has not been necessary for me to determine if this is the case. I note that this offer has been restated in these proceedings. Considering my conclusions, I encourage Mr Fogo to return to it and reconsider his position.
The key issue to determine is whether the reasons relied on by BAA in refusing Mr Fogo’s request constitute reasonable business grounds and whether an order or orders should be made.
The reasons BAA relied on in refusing Mr Fogo’s request are set out above at [96]. The reasons relied upon include matters that fall within the non-exhaustive grounds set out in s.65A(5), including the impact on productivity or efficiency, the impact on internal customer service, and impracticality of changing the working arrangements. Evidence is provided to support these submissions, along with further information in relation to additional supporting reasons why the request has been refused. This includes the nature of Mr Fogo’s planning role, BAA’s desire to capitalise on his experience and the business’s changed work environment since the lockdowns associated with the COVID-19 pandemic.
BAA does not particularise or articulate detailed costs to its business of accommodating Mr Fogo’s request. Its position is consistently clear that given the nature of its production operation, how it has organised its production process and Mr Fogo’s role within the business, that accommodating Mr Fogo’s request would require the business to accept the risk of potentially significant cost. Mr Sraieldin’s evidence, which I accept, is that:
“The key concern with Mr Fogo’s request is the unpredictable nature of production constraints and line stopping activities. They simply cannot be planned around any individual worker’s working arrangements.”[32]
At the hearing, Mr Fogo accepted that these events in particular – production constraints and line stopping events, are significant and critical to BAA. Further, that they can result in a significant loss of productivity for BAA.[33] He also accepts that there may be occasions that part of his role includes working with colleagues to quickly access and “just go and fix” simple planning related production issues that may arise.[34] That it is BAA’s expectations SATs are not issues that can be resolved within 30 minutes and that its business process instructions for dealing with SATs includes Line Side Control Centre (LSCC) where he works, potentially being involved at every step.[35]
Despite this, Mr Fogo maintains his position that such significant events are “rare”. Or alternatively, that they are capable of being managed either through other team members, online, or in the event of an emergency with his assistance on a Monday or Friday as he can come to the workplace if necessary.
Mr Fogo’s principal argument is that to rely on “reasonable business grounds” the Respondent must prove the request will result in significant loss in efficiency, productivity and that there will be a significant impact on customer service.[36] It is accepted that almost all requests will result in some adverse impact. Mr Fogo argues BAA has failed to meet this burden of proof to the “significant threshold level” and that BAA failing to meet this requirement, the Commission should make an order in his favour.[37]
He argues BAA has not been able to establish that he cannot continue to perform his job and meet the expectations and requirements of him working from home on Mondays and Fridays with only minimal impact on its operations. Further, BAA has not established that if his request is granted the impact on its business will be significant.
Mr Fogo submits the authorities in Brimbank and FedEx support his position that significant loss and impact of granting an Applicant’s request must be substantiated and proved.
I do not accept these authorities stand for the proposition an employer is unable to refuse a flexible working arrangement unless it can establish concrete evidence of loss and impact that would be occasioned by the granting of the request.
Rather as I have identified above at [31]-[34], what it required is for the Respondent to have set out reasonable business grounds that, objectively viewed by the Commission, demonstrate a likely detriment to the business (per FedEx)[38]. And further, that these grounds “must point to costs or adverse impacts” associated with the request that are over and above the inevitable small impacts of any request (per Fyfe).[39]
On the evidence that has been presented, I am satisfied that BAA has established the requirements of Mr Fogo’ role are more than a passive team member who can successfully perform his work in an online environment disconnected from direct and immediate in person contact with colleagues in his workplace. When taken to the requirement of his position in the hearing, Mr Fogo accepted that he is required to be “proactive” and on “occasion” may be required be in the workplace to be able to successfully perform his role.[40]
He argues that the position description of his position requirements along with BAA’s policy requirements for line stopping activities and production constraints are either out of date or not consistent what happens in the workplace. That in actual practice in the event of line stopping activities, SATs or other production constraints operators raise these issues with their team leaders, managers or shop floor MQEs first, who overwhelming address day to day issues. That planners like him are rarely involved or required to engage with shop floor operators, and that even if this were the case, and it occurred on a Monday and Friday when he was away from work, there are other members of staff available who could assist. Furthermore, that he could assist online from home as he predominately does now. Or, in the event of an emergency, he could travel from home into work if required.
In BAA’s evidence, Mr Sraieldin acknowledged that it would usually be more efficient and common practice for operators to first contact their team leader, shop floor MQE or manger in the event they needed urgent assistance. Despite this conjecture of who responds to issues first, I am satisfied BAA have clearly established such events occurring can be critical and significantly adversely impact its operations.
Further, I am satisfied that BAA have clearly set out it is their practice and requirement of all employees – including Mr Fogo, that they work to address these issues as quickly as possible with all available resources. The business’s policy position for what is and what is not a SAT makes this abundantly clear – a SAT is not something that can be resolved within 30 minutes.
Mr Fogo accepts that there could be, and have been occasion, where as a planner his role is required to play a part in addressing these critical issues. It is also accepted that when these circumstances will occur is difficult to predict and that being in the workplace may be of assistance to deal with these issues more efficiently.[41]
Mr Sraieldin also gave evidence, which I accept, that in some instances it is only MQE3 planners like Mr Fogo who can approve changes before production can recommence.[42]
I accept that there are clearly some aspects of Mr Fogo’s role that can be (and clearly are) successfully performed online. I also accept that it may be the case that some aspects of his role may be able to be done from home without “significant” impacts on BAA’s operations. Ultimately, however, whether Mr Fogo may be able to perform some of his work from home is not the question the Commission is required to determine.
What is required is a determination of whether, objectively viewed, the reasons relied on by BAA to refuse Mr Fogo’s request constitute “reasonable business grounds”. To make this determination, I must first consider what reasonable business grounds means. The parties have presented a joint bundle of authorities in this matter, inclusive of the Commission’s decision in Fyfe v Ambulance Victoria where this was considered with reference to the ordinary meanings in the Macquarie Dictionary. Therein, the Commission identified “reasonable” means – “agreeable to reason or sound judgement; “business” to be a place of work’; and “grounds” to mean – “the foundation or basis on which a theory or action rests.”[43] There is no contest that this is the correct approach to take in this matter.
This being the case, I must next consider, do the grounds BAA rely upon in their refusal letter provide a sound and reasonable foundation to support their decision.
I have set out my consideration of these reasons along with the evidence and submissions of the parties above. I am persuaded this evidence establishes part of Mr Fogo’s role requires him to actively engage with colleagues and staff. That, on occasion, he may also be required to play an important part in unpredictable time-sensitive tasks, addressing significant and potentially critical issues with BAA’s production process. Further, that there may be occasions that these tasks are more effectively and efficiently performed in the workplace.
On this basis, I am satisfied that not having Mr Fogo in the workplace to perform his role for up to 40% of his working week is a significant detriment to BAA. Further, I am satisfied there is a real potential for BAA to suffer significant negative impacts, and costs, should Mr Fogo not be in the workplace Mondays and Fridays each week. I am also satisfied, balanced against Mr Fogo’s request, that these impacts are clearly over and above the inevitable small impacts that BAA would suffer from accommodating Mr Fogo’s request.
For these reasons, considering all the above circumstances, I would, but for my earlier finding that Mr Fogo has not made a request within the meaning of s.65(1), find that in arbitrating this dispute the grounds relied on by BAA in refusing Mr Fogo’s request are taken to have been reasonable business grounds. I would also issue an order to that effect. Such an order would not be inconsistent with a provision of the Act or a term of a fair work instrument that applies in accordance with s.65C(2A).
Conclusion
For the reasons set out above, I have determined that Mr Fogo has not made a request under s.65(1). As such. there can be no dispute that is capable of arbitration by the Commission under s.65B(4)(b). In the alternative, if I am wrong in that conclusion, I would decline to issue an order in the terms sought by Mr Fogo and would issue an order to the effect that the grounds BAA has relied upon in refusing his request be taken to have been reasonable business grounds.
Accordingly, Mr Fogo’s application is dismissed for want of jurisdiction.
COMMISSIONER
Appearances:
Mr A Bonello on behalf of the Applicant.
Ms C Pase on behalf of the Respondent.
Hearing details:
Melbourne
2024
12 August.
[1] Applicant’s Outline of Submissions in reply at [8.2], Court Book page 40.
[2] Ibid at [8.3] and [8.4], Court Book page 40.
[3] Respondent’s Outline of Submissions at [4]-[6], Court Book page 61.
[4] [2023] FWCFB 209.
[5] Ibid at [22]-[25].
[6] [2024] FWC 670.
[7] [2024] FWC 2231.
[8] Ibid at [50].
[9] Ibid at [51].
[10] [2024] FWC 1845.
[11] Ibid at [66].
[12] [2023] FWC 49 at [84]-[85].
[13] [2013] FWC 5.
[14] [2023] FWC 49 at [88], citing ASU v Brimbank City Council.
[15] Subject to s.65C(2) (fairness between the employer and employee) and s.65C(3) (satisfaction there is no reasonable prospect of the dispute being resolved without the making of an order).
[16] See Applicant’s Submission in Reply at [8.5], referencing the 2013 Explanatory Memorandum, Court Book page 40.
[17] Ibid at [8.6], Court Book page 41.
[18] Ibid at [13] and [14].
[19] [2024] FWC 670; Applicant’s Submission in Reply at [15], Court Book page 42.
[20] [2024] FWC 670 at [24].
[21] Transcript of Proceedings on 12 August 2024 at PN698-PN703.
[22] Respondent’s Outline of Submissions at [29], Court Book page 65.
[23] Ibid at [32].
[24] Ibid at [33].
[25] Ibid at [39], Court Book page 68, citing CCL Label at [27].
[26] [2024] FWC 2231 at [52]-[53].
[27] Ibid at [53].
[28] Applicant’s Outline of Submissions at [31]-[34], Court Book pages 8 – 9.
[29] Witness Statement of Melinda Sikk, Court Book page 56.
[30] Witness Statement of Nathan Tuddenham, Court Book pages 57 – 59.
[31] Goldsworthy v Victoria Police T/A Victoria Police[2024] FWC 173 at [121].
[32] Witness Statement of Faisal Sraieldin at [57], Court Book page 172.
[33] Transcript of Proceedings on 12 August 2024 at [PN170] – [PN180].
[34] Ibid at [PN217].
[35] Ibid at [PN217] – [PN245].
[36] Ibid at [PN707].
[37] Ibid at [PN708].
[38] See Ridings v FedEx[2024] FWC 1845.
[39] [2022] FWC 2914 at [87]-[88].
[40] Transcript of Proceedings on 12 August 2024 at [PN110]-[PN152].
[41] Ibid at [PN662], Witness Statement of Pratik Kapadiya at [42], Court Book 87.
[42] Ibid at [PN599]-[PN602].
[43] [2023] FWC 49 at [24]; Respondent’s Outline of Submissions at [54], Court Book page 70.
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