The three workers were granted a flexible work arrangement in the form of a 9 day fortnight under clause 20 of the Brimbank City Council Enterprise Agreement 6, 2010 (the Agreement) after Vice President Lawler found that the Council had unreasonably rejected their request. The proposed arrangement involves the workers working the same number of hours, but over a 9 day fortnightly period.
Clause 20 of the Agreement gives an employee the right to request a flexible work arrangement, and outlined that Council may only refuse the request based on "reasonable grounds related to the effect on the workplace", including cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.
Vice President Lawler rejected Council's jurisdictional objections (including that the request constitutes an 'extra claim' in breach of the Agreement) and pointed to "a conspicuous absence in the evidence of the Council of particular or compelling examples of costs or difficulties" caused by the employees' current RDO arrangements.
Further, his Honour found it particularly significant the concession made by Council's HR Manager in cross-examination that the employees are likely to get through the same number of tasks under the new arrangement and the HR Manager's preparedness to make "sweeping assertions of adverse effect" that were not supported by particulars when pressed.
Mr Burgio said "The case demonstrates the importance of seeking clauses in enterprise agreements dealing with employees' rights in respect of flexible working arrangements, including a right of review to the independent umpire, the Fair Work Commission. This is particularly the case given the lack of redress for workers in relation to flexible work arrangements under the Fair Work Act National Employment Standards."
The NES provides a right for employees to make a request for flexible work arrangements and that an employer may only refuse the request on reasonable business grounds. However, unless an employer agrees to dispute resolution, there is no form of review of redress where an employer refuses such a request. There is no right to arbitration by the Fair Work Commission. No matter how unreasonable such a refusal may be, no penalty attaches to the refusal under the Fair Work Act.
"It is clear that flexible work arrangements lead to a more satisfied workforce, and in turn, a more productive workforce. The importance of work/life balance in modern Australian workplaces cannot be overstated" said Mr Burgio.
Brian Parkinson, Branch Secretary from the Australian Services Union (Victorian/Tasmanian Authorities & Services Branch) welcomed the result handed down by the Fair Work Commission.
"The members in question have waited for more than a year for the recent decision, and we congratulate the ASU members on the result and for their work during the arbitration. The decision also highlights the importance of the strong relationship between the ASU and Maurice Blackburn Lawyers."
The decision, ASU v Brimbank City Council  FWC 5, can be viewed at www.fwc.gov.au.