Natasha Fyfe v Ambulance Victoria - [2023] FWC 49

[2023] FWC 49

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739 - Application to deal with a dispute in relation to flexible working arrangements

Natasha Fyfe
v

Ambulance Victoria

(C2022/3750)

COMMISSIONER JOHNS

MELBOURNE, 6 JANUARY 2023

Alleged dispute about any matters arising under the enterprise agreement

Introduction

Natasha Fyfe (Applicant) is a young mum with three kids[1]. Ms Fyfe is also an experienced and dedicated Advance Life Support Ambulance Paramedic having been employed by Ambulance Victoria (AV/Respondent) since 2015.

Like many working carers/parents (disproportionately mothers) Ms Fyfe is trying to balance her work and family life. To do that, on 21 February 2022, Ms Fyfe made an application to AV for flexibility in her shift arrangements (First FWA Request) pursuant to clause 23 of the Ambulance Victoria Enterprise Agreement 2020 (Agreement). AV rejected her application.

This decision is about whether AV had reasonable business grounds to do so.

After going through an internal disputes process with AV, on 29 June 2022, Ms Fyfe applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act).

By the time of the hearing the dispute related solely to Ms Fyfe’s request to change her night shift arrangements.[2] The normal night shift commences at 6:00 pm and concludes at 8:00 am.

Ms Fyfe cannot work the normal night shift because she needs to be home until at least 6:30pm in the evening and return by 8:00am in the morning so that she can care for her children while her partner is at work.

Ms Fyfe proposed that she commence night shift at 9.00 pm (rather than 6.00 pm) and finish night shift at 6.00 am (rather than 8.00 am). The change in start and finish time would allow Ms Fyfe enough time to travel to her branch in the evening, and to travel home in the morning. The amended hours would also allow for incidental overtime at the end of her shift.

If agreed to, Ms Fyfe would still be able to undertake 64% of the night shift.

It is this proposed change in night shift arrangements that AV rejected.

The parties agreed that I should answer the following question:
“Does the Respondent have reasonable business grounds for refusing the First FWA Request pursuant to clause 23.4 of the Agreement?” (Agreed Question)
For the reasons set out below I have determined the dispute by deciding the Agreed Question in the negative.

Jurisdiction

Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

While it is the case that s.739(2) of the FW Act prevents the Commission from dealing with a dispute “to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5)” the Commission is not prevented:

“from dealing with a dispute relating to a term of an enterprise agreement…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] FWC 49
Decision Date: 6 JANUARY 2023

CaseChat Overview and Summary

Natasha Fyfe, a paramedic employed by Ambulance Victoria (AV), applied for flexible working arrangements (FWA) to accommodate her childcare responsibilities. The FWA would have required Ms Fyfe to work night shifts that started at 9:00 pm and finished at 6:00 am, rather than the standard 6:00 pm to 8:00 am night shift. AV rejected Ms Fyfe's FWA request, and she subsequently applied to the Fair Work Commission (FWC) to determine whether AV had reasonable business grounds for its refusal. The FWC found that AV did not have reasonable business grounds for refusing Ms Fyfe's FWA request. The FWC noted that AV did not engage in discussions with Ms Fyfe or genuinely try to reach an agreement with her before refusing her request. The FWC held that the reasons provided by AV for its refusal were not sufficient to establish reasonable business grounds, as they did not demonstrate a significant cost or impact beyond the inevitable small adverse impacts associated with any material request. The FWC determined that Ms Fyfe's proposed FWA could have been accommodated by AV without causing significant operational difficulties, and that her availability could have filled shifts that would otherwise go unfilled, thereby benefiting the community and AV's operational needs.

Orders