The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police - [2022] FWC 2223

[2022] FWC 2223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution in relation to flexible working arrangements

The Police Federation of Australia (Victoria Police Branch)
v

Chief Commissioner of Police T/A Victoria Police

(C2022/2593)

DEPUTY PRESIDENT BELL

MELBOURNE, 11 NOVEMBER 2022

Section 739 Fair Work Act 2009 - dispute in relation to request for flexible work arrangements – whether reasonable business grounds for refusal – reasonable business grounds existed.

The Police Federation of Australia (Victoria Police Branch) (TPAV) has raised a dispute under the Victoria Police (Police Officers, Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2019 (Agreement). The dispute concerns a request for a flexible working arrangement on behalf of a member of the TPAV, First Constable S. Azmi (FC Azmi), which was refused by the Respondent (Victoria Police). Following the dispute procedures under the Agreement, an application was made under s.739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with the dispute. There is no disagreement that the relevant steps under the dispute clause in the Agreement were satisfied and that the Commission has jurisdiction to deal with the dispute.

Following an unsuccessful conciliation, the Commission was asked to arbitrate the matter. The question for arbitration, as agreed by the parties, was:

“Did Victoria Police have reasonable business grounds to refuse First Constable Shafiqur Azmi’s request for a Flexible Working Arrangement (FWA) submitted on 5 October 2021?”

Clause 14 of the Agreement is as follows:

“14. Right to Request Flexible Working Arrangements

14.1 All positions in Victoria Police may be worked flexibly.
14.2 An employee who:

(a) is the parent of, or has responsibility for, the care of a child who is of school age or under; or
(b) is a carer within the meaning of the Carer Recognition Act 2010; or
(c) has a disability; or
(d) is 55 years of age or older; or
(e) is personally experiencing family or domestic violence; or
(f) is providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family or domestic violence;

may request a change in working arrangements (including a change to work location) relating to those circumstances.

14.3 To avoid doubt, and without limiting sub-clause 14.2, 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.

14.4 The employee is not entitled to make such a request, unless the employee has completed at least 12 months of continuous service with the employer, immediately before making the request.
14.5 Such a request must be made by the employee in writing and must set out the details of the change sought and the reasons for the…

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

AGLC: The Police Federation of Australia (Victoria Police Branch) v Chief Commissioner of Police T/A Victoria Police [2022] FWC 2223
Case: [2022] FWC 2223
Decision Date: 11 NOVEMBER 2022

CaseChat Overview and Summary

The case before the Fair Work Commission involved a dispute between the Police Federation of Australia (Victoria Police Branch) (TPAV) and the Chief Commissioner of Police (Respondent) regarding a flexible working arrangement (FWA) request made by a police officer. The officer sought to change his shift pattern from five eight-hour shifts per week to four ten-hour shifts per week, with Mondays, Tuesdays, and Sundays as permanent days off. The Respondent refused the request, leading to the current dispute. The central issue for the Commission to decide was whether the Respondent had reasonable business grounds to refuse the officer's request for a flexible working arrangement. The Commission found that the Respondent did have reasonable business grounds to refuse the request. The primary reason for the refusal was the chronic staff shortage experienced by the Transit Safety Division of the Victoria Police. This shortage led to insufficient coverage for various shifts, including "van shifts" that involved transporting offenders. The officer's proposed shift pattern would have resulted in a loss of productive work time, which, coupled with the existing staff shortages, provided reasonable business grounds for the refusal. The decision highlights the importance of balancing an employee's personal circumstances with the operational needs and resources of the employer when considering requests for flexible working arrangements.

Orders