| [2022] FWC 248 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution in relation to flexible working arrangements
Brendan Treston
v
Civil Aviation Safety Authority (an Australian Government public service agency) T/A CASA
(C2021/4732)
COMMISSIONER HUNT |
BRISBANE, 7 FEBRUARY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; s.186(6) – flexible working arrangement – jurisdictional objection, prohibition on Commission dealing with disputes pursuant to s.739(2)(a) and s.65(5).
[1] On 12 August 2021, Mr Brendan Treston applied to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 8 of the Civil Aviation Safety Authority Enterprise Agreement 2016-2019 (the CASA Agreement). The Civil Aviation Safety Authority (an Australian Government public service agency) t/a CASA is the Respondent to this application (the Respondent).
[2] The dispute concerns the Respondent’s refusal on 11 May 2021 to grant Mr Treston’s request for flexible working arrangement to work from home four days a week. Mr Treston was advised by his Branch Manager that his request to work from home was not supported by a number of “reasonable business grounds”. The Respondent did support Mr Treston working from home two days a week.
[3] It is noted that Mr Treston made his request for flexible working arrangements pursuant to s.65(1A)(d) of the Act as he is 55 years or older. Mr Treston is 61 years of age.
[4] On 12 May 2021, Mr Treston sought an internal review of the decision. The decision was upheld on 9 July 2021, where Ms Luci Henson, Branch Manager People, communicated to Mr Treston that she agreed with and adopted the reasonable business grounds, amongst other reasons, to deny his request. The letter further advised that the matter was finalised, and that if Mr Treston remained unsatisfied with the matter, he “will need to seek an external review in accordance with the CASA Review of Actions Directive.”
[5] Mr Treston filed his application with the Commission. It is clear, however, that the Commission’s jurisdiction must be determined having regard to s.739(2) of the Act. To be clear, this decision does not determine whether the Respondent’s decision to refuse Mr Treston’s request to work four days from home was refused on reasonable business grounds. The decision determines only whether the dispute can be determined by the Commission.
[6] Section 739 of the Act relevantly provides:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).”
[7] It is not necessary to have any regard in this decision to s.76(4) of the Act as that section deals with a request to extend unpaid parental leave. The relevant section for consideration in s.739(2) is s.65 of the Act:
“65 Requests for flexible working arrangements
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:
(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 violence from a member of the employee’s family;
(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 violence from the member’s family.
…
(5) The employer may refuse the request only on reasonable business grounds.
(5A) Without liming what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:
(a) that the new working arrangements requested by the employee 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 by the employee;
(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 by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.”
[8] As is clear, the Commission must not deal with an application before the Commission to determine if the relevant employer refused an employee’s request on reasonable business grounds pursuant to s.65(5) unless the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the Commission dealing with the matter.
Terms of the CASA Agreement
[9] The CASA Agreement provides for the following Dispute Settlement Procedure:
“8. Dispute settlement procedures
8.1. If a dispute relates to:
8.1.1. a matter arising under the Agreement; or,
8.1.2. the National Employment Standards (the NES);
this term sets out procedures to settle the dispute.
8.2. An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause 8.
8.3. In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
8.4. If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the FWC.
8.5. The FWC may deal with the dispute in 2 stages:
8.5.1. the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
8.5.2. if the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note: If the FWC arbitrates the dispute, it may also use the powers that are available to it under the FW Act. A decision that the FWC makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.
…”
[10] The Flexible Working Arrangements clause contains only the following:
“67. Flexible Working Arrangements
67.1. Employees have the right to request flexible working arrangements under the FW Act.”
[11] It is common ground that CASA’s Flexible Work Arrangements Procedure, provided in evidence, does not permit the Commission to determine any dispute between an employee and the Respondent as to whether the Respondent refused an employee’s request on reasonable business grounds. 1
[12] I convened a telephone conference of the parties on 31 August 2021. The Respondent had been directed to provide a written response to the application, but on reading the material, the Respondent had not addressed s.739(2) and how it affects determination of matters of s.65(5) of the Act. I directed my Associate to refer the parties to the two sections of the Act, and a link to the decision of Commissioner Saunders (as the Deputy President then was) in Sims v StarTrack Express Pty Ltd T/A StarTrack (Sims). 2 The parties were asked to address the issue at the telephone conference on 31 August 2021.
[13] The matter could not be resolved at the conference and accordingly, the matter was heard before me by Teams video on 3 November 2021. Mr Treston was represented by Mr Don Moss, Senior Industrial Advisor of the Association of Professional Engineers, Scientists and Managers, Australia (the APESMA), together with Mr Greg Hall, Lawyer of APESMA. The Respondent was represented by Mr Anthony Carter, Lawyer of CASA, together with Mr Greg Williams, Lawyer of CASA.
[14] The Respondent submitted that clause 67.1 of the CASA Agreement goes no further than to recognise that an employee of the Respondent is entitled to seek flexible working arrangements under the Act. The Respondent refuted that this is a dispute clause and argued that the clause does not refer to, or in any way indicate, an intention to seek to exclude the prohibition contained in s.739(2) of the Act. Similarly, the Respondent submitted that clause 8 of the CASA Agreement does not refer to or disclose any intention to depart from the provisions of the Act, including the prohibition under s.739(2).
[15] The Respondent noted the following conclusion reached by the Commissioner in Sims:
“[11] Section 739(2)(a) is specific in its terms; it requires a written agreement of a particular nature between the parties empowering the Commission to deal with a dispute about whether the employer had reasonable business grounds to reject a request for flexible working arrangements. In order to overcome the prohibition imposed by s.739(2)(a) of the Act, there would, in my view, need to be a specific clause in an enterprise agreement (or other applicable instrument) empowering the Commission to deal with a dispute about whether the employer had reasonable business grounds to reject a request for flexible working arrangements, not just a general clause dealing with disputes about the “employment relationship” and/or “the NES”.
[16] The Respondent also noted Commissioner Cloghan’s decision in Brow v National Offshore Petroleum Safety and Environmental Management Authority T/A NOPSEMA (Brow), 3 where he said:
“[48] … there is no reference in Mr Brow’s contract of employment or the PS Award which particularises that the parties have agreed to the Commission dealing with a dispute where NOPSEMA has refused a FWA request pursuant to s.65(5) of the FW Act on ‘reasonable business grounds’. I say particularly, because, in my view, a general reference to dealing with a NES dispute is insufficient when considering the distinctive characteristic of the statutory exclusion in s.739(2) of the FW Act.”
[17] The Respondent submitted that clause 8 of the CASA Agreement does not rise to the level of specificity required, as expressed in Sims and Brow, to overcome the prohibition contained in s.739(2) of the Act. In other words, clause 8 and clause 67.1 of the CASA Agreement are neither specific nor express clauses that would empower the Commission to deal with a dispute about whether the employer had reasonable business grounds to reject a request for flexible working arrangements.
[18] The Respondent viewed clause 67.1 to be no more than a restatement of the statutory right as found under s.65(1) of the Act; that is to provide the employee with the right to request flexible working arrangements. The Respondent submitted that this clause does not expressly seek to confer jurisdiction upon the Commission to deal with a dispute arising from the rejection of a request for flexible working arrangement on reasonable business grounds.
[19] The Respondent further asserted that this is consistent with the statutory scheme permitting the making of a flexible working application, but not permitting a review by the Commission of the stated reasonable business grounds. Therefore, the Respondent submitted that s.739(2) of the Act prevents the Commission from dealing with this dispute.
[20] Whilst noting that s.739(2) of the Act precludes the Commission from dealing with a dispute, to the extent that the dispute is about whether an employer had reasonable business grounds under s.65(5) or s.76(4) of the Act, Mr Treston submitted that the parties have agreed, when entering into the CASA Agreement, that the Commission may deal with disputes relating to matters arising under the CASA Agreement or the NES.
[21] As the CASA Agreement contains a clause, at clause 67, dealing with the right of employees covered by the CASA Agreement to request flexible working arrangements in accordance with the Act, Mr Treston argued that a request for flexible working arrangements is thereby a matter arising under the CASA Agreement. It was submitted that Clause 67 of the CASA Agreement does not merely relate to ss.65(1) and (2) of the Act but relates to the whole of s.65.
[22] Mr Treston noted the Respondent’s submissions, particularly in reference to Sims and Brows, to argue that the Commission does not have jurisdiction to deal with this dispute in circumstances where the Respondent refused a request for flexible working arrangements pursuant to s.65(5) of the Act. Mr Treston noted that Brow concerned a dispute resolution clause under Mr Brow’s employment contract, and in Sims, the matter concerned a dispute resolution agreement clause in an enterprise agreement which applied to Mr Sims.
[23] Mr Treston sought to distinguish Sims and Brow on the basis that the matter of flexibility arrangements was not covered in the relevant contract, or enterprise agreement, and therefore there was no agreement consistent with the requirements of s.739(2) of the Act so as to allow the Commission to exercise its jurisdiction. In other words, that there was no term in an enterprise agreement, modern award or employment contract where it expressly dealt with a request for a flexible working arrangement, nor an employer’s refusal to grant a flexible working arrangement.
[24] As stated earlier, Mr Treston submitted that the parties agreed to clause 67 of the CASA Agreement, which provides a right for Mr Treston to seek a flexible work arrangement in accordance with s.65 of the Act. As per s.65(5), the Respondent can only refuse Mr Treston’s request on the basis of “reasonable business grounds”. However, in relation to the CASA Agreement, Mr Treston submitted that it is very clear that the exception under s.739(2)(a) applies and the Commission has jurisdiction to deal with this application.
[25] It was submitted that in Victoria Police v The Police Federation of Australia (Victoria Police Branch)T/A The Police Association of Victoria (Victoria Police), 4 the Full Bench had no difficulty in dealing with and determining an appeal relating to a flexible working arrangement claim pursuant to clause 10 (Dispute Resolution) and clause 14 (Right to Request Flexible Working Arrangements) under the Victoria Police (Police Officers (Excluding Commanders), Protective Services Officers, Police Reservists and Police Recruits) Enterprise Agreement 2015 (the Victoria Police Agreement). Mr Treston submitted that the issue of jurisdiction was “not raised” by legal counsel representing Victoria Police in either the initial hearing before Commissioner Wilson5 nor before the Full Bench.
[26] Clause 14 of the Victoria Police Agreement is in the following terms:
“14. Right to Request Flexible Working Arrangements
14.1 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 relating to those circumstances.
14.2 The employee is not entitled to make such request, unless the employee has completed at least 12 months of continuous service with the employer, immediately before making the request.
14.3 Such request must be made by the employee, and assessed by the employer, in accordance with the provisions of Section 65 of the FW Act.”
[27] Mr Treston submitted that Clause 14 of the Victoria Police Agreement did not specifically provide authority to the Commission to determine what was or was not “reasonable business grounds”. Rather, clause 14 merely adopted subsections 65(1A) and 65(2)(a) of the Act, together with a general statement that the request “must be made by the employee, and assessed by the employer, in accordance with the provisions of Section 65 of the FW Act”. He contended that Commissioner Wilson at first instance, and the Full Bench on appeal, appeared to have no issue in determining that the Commission had jurisdiction to determine the dispute.
[28] It was submitted that regard should be had to the Explanatory Memorandum of the Fair Work Bill 2008, and specifically:
“2741. Under subclause 739(2), FWA cannot exercise any of its powers or otherwise consider, review or question whether an employer had reasonable business grounds to refuse a request by an employee for flexible working arrangements (see subclause 65(5) or extension of unpaid parental leave (see subclause 76(4)).
2742. However, if an enterprise agreement provides a right to flexible working arrangements (including by reference to a State law)… the dispute settlement procedure in the agreement would apply to this right.”
[29] Mr Treston submitted that the above extracts of the Explanatory Memorandum put the intention of the Parliament towards this matter beyond doubt. Mr Treston asserted that it is very clear that s.739(2) of the Act does not deny the Commission from having jurisdiction to deal with this matter as Mr Treston is covered by the CASA Agreement and that Agreement provides him with a right to request and pursue flexible working arrangements, and to have any dispute about “a matter arising under the Agreement” dealt with in accordance with the provisions of clause 8 of the CASA Agreement.
[30] In reply submissions, Mr Treston contended that the word “matter” in s.739(2)(a) of the Act relates to an agreement as to “flexible work arrangements” generally, and how claims can be pursued, as opposed to the Respondent’s position that it refers to a specific agreement allowing for the Commission to determine what is or what is not “reasonable business grounds”. Mr Treston said his dispute is brought pursuant to clause 8.1.1 of the CASA Agreement, being a matter arising under the Agreement, and it is not a dispute relating to the NES.
[31] Mr Treston submitted that clause 67.1 of the CASA Agreement is not a general reference to an employee’s entitlement in relation to the NES. It is a specific clause in an enterprise agreement which allows the Commission to deal with all matters arising under s.65 of the Act, including an employer’s refusal to grant a flexible working arrangement per s.65(5) of the Act, in accordance with clause 8.1.1 of the CASA Agreement.
[32] Mr Treston asserted that there is nothing in the Respondent’s submission which evidences that clause 67.1 of the CASA Agreement was intended to apply to s.65(1) only, rather than the whole of s.65 of the Act.
[33] A considerable portion of the hearing was spent discussing Clause 14 of the Victoria Police Agreement in the Victoria Police matter. Where it was put by Mr Moss on behalf of Mr Treston that in the decision at first instance and in the appeal, it was assumed that there was jurisdiction, the following was discussed to further understand the differences between Clause 14 of the Victoria Police Agreement and Clause 67 of the CASA Agreement: 6
Commissioner: It seems to me that the Full Bench and Wilson C didn't have any difficulties with the jurisdiction of the Commission with the Victoria Police, presumably because of 14.3 where it provided in that agreement that it would be assessed by the employer in accordance with the provisions of section 65 of the Fair Work Act, so that's not in the CASA agreement. Is that what's missing?
Mr Moss: Well, as I said earlier, the parties to the enterprise agreement perhaps could have been, or if they'd known they should've incorporated more provisions in section 67, but nevertheless the intention was that the rights of an employee, of the eligible employees to make these requests includes the right to pursue the matter in accordance with subsection (5) of section 65. That's our submission. Our submission is that it incorporates not merely the right to request but also the right to pursue in accordance with the subsection 65(5).
[34] Mr Treston disagreed that clause 67 of the CASA Agreement is simply a pointer, or marker, to employees to inform their right to request, as asserted by the Respondent. In reply, the Respondent reiterated that clause 67 was included to inform a legal right under the Act for employees seeking flexible working arrangements under s.65. The wording of that clause, on the face of it, does no more than to state that there is an existence of such a right. The Respondent argued that there is nothing in the clause to indicate that it sought to incorporate s.65 into the CASA Agreement, and if it was the intention, then this could have easily been achieved by the wording adopted in accordance with the principles of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Ltd [2017] FWCFB 3005 about giving a literal interpretation of the wording, and if there is no ambiguity, then there is no requirement to look to an ancillary or extraneous material.
[35] The Respondent submitted that clause 14 in the Victoria Police Agreement bears no resemblance to that of clause 67 of the CASA Agreement. Even if clause 67 served to put into play s.65, the Respondent argued that there is nothing in the CASA Agreement which adverts to the prohibition about reasonable business grounds being determined. The Respondent reiterated that the scenario of the current matter is similar to that of Sims and Brow, that unless there is necessary express wording which incorporates an intention of the parties, and shows that intention of the parties to allow the Commission to review the matter, the matter must not be determined by the Commission. The Respondent argued that the better course would be to accept that the prohibition under s.739 is still operational.
Consideration
[36] The issue in this case is whether the parties have agreed in the CASA Agreement to the Commission dealing with the matter. The matter must be, by considering the whole of the subclause and the words preceding subsection (a), a dispute about whether an employer had reasonable business grounds under subsection 65(5) of the Act.
[37] While Mr Treston may have quoted parts of the Explanatory Memorandum, he did not reference all relevant provisions. Saunders C did in Sims:
[12] The following parts of the Explanatory Memorandum to the Fair Work Bill 2009 also support my conclusion in relation to the proper interpretation of clause 15 of the Enterprise Agreement and s.739(2) of the Act:
“26. … Requests for flexible working arrangements: the Standard does not provide an entitlement to request flexible working arrangements. The NES will provide a new legislated entitlement for parents of, or having responsibility for the care of, a child under school age to request a change in working arrangements to assist with the care of the child. An employer will only be able to refuse this request on reasonable grounds. The employer's decision will not be subject to review.
…
214. This provision allows modern awards and enterprise agreements to deal with machinery issues (such as when payment for leave must be made). It also allows awards to provide more beneficial entitlements than the minimum standards provided by the NES. For example, an award or agreement could provide for more beneficial payment arrangements for periods of leave, or provide redundancy entitlements to employees of small business employers. Similarly, an agreement could provide a right to flexible working arrangements. The term about a dispute settlement procedure would also apply to that right.
…
785. The legislative note following subclause 186(6) refers to subclause 739(2) and subclause 740(2) which provide that FWA or a person must not deal with a dispute about whether an employer had reasonable business grounds under certain provisions of the NES (subclause 65(5) or subclause 76(4)).
786. However, an agreement could include a term providing for a right to flexible working arrangements separate to subclause 65(5). The enterprise agreement may also provide for the agreement's disputes procedure to apply in respect of any such term.”
[38] In my view, it is clear that s.65 of the Act does not provide any right for an employee to seek review of an employer’s decision to refuse an employee’s request for flexible working arrangements. The section prescribes eligibility, a process to be followed, and on what grounds an employer may refuse a request.
[39] If Clause 67 of the CASA Agreement was referenced within a contract of employment between Mr Treston and the Respondent, or within some other written agreement, it would simply be a pointer to the provisions in the NES. It would have no other function. It would simply be a statement of existing rights. It certainly would not satisfy the prohibition within s.739(2)(a) because the words, “Employees have the right to request flexible working arrangements under the FW Act” do not evince agreement for the Commission to determine whether the Respondent had reasonable business grounds under s.65(5) to refuse the request.
[40] Mr Treston submitted that because Clause 67 exists within the CASA Agreement, the entirety of s.65 of the Act then becomes a matter arising under the Agreement for which a dispute can be determined. I cannot support this conclusion.
[41] I am not satisfied that Clause 67 in the CASA Agreement incorporates s.65 of the Act. There is nothing to support such a conclusion. I determine that Clause 67 does nothing further than inform employees covered by the Agreement that they have a right to request flexible working arrangements under the Act.
[42] In the Victoria Police Agreement, clause 14 was detailed, and I consider that clause 14.3, requiring the employer to undertake an act, an obligation, assessing the employee’s request in accordance with s.65 of the Act, enlivened the Commission’s jurisdiction. Where Mr Treston has submitted that the Commissioner at first instance, and the Full Bench in the appeal did not deliberately turn their mind to the question of jurisdiction, I disagree. The Commissioner at first instance found that because clause 14 of the Victoria Police Agreement required the employer to make a decision, having regard to all of the criteria in s.65 of the Act, any decision to refuse a request would then be a matter arising under the Victoria Police Agreement. The Commissioner satisfied himself that jurisdiction existed in the following passage:
“[28] As is evident from an examination of Clause 14 of the 2015 Agreement along with s.65 of the Act, the interaction between the two is to the effect that a person desiring to make a request for flexible working arrangement must fit within one of the six factual criteria in Clause 14.1, as well as meeting the requirement in Clause 14.2 that they must have completed at least 12 months of continuous service with Victoria Police, with that period being served immediately before the making of a request. Once made the request must then be assessed by Victoria Police in accordance with the provisions of s.65 of the Act. That section requires merely that a conforming request be made, which is then required to be assessed by the employer who may refuse the request only on reasonable business grounds.”
[43] The Commissioner then went on to discuss the decision by Vice President Lawler in Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council 7 (Brimbank), noting that the Vice President in that case determined that the relevant flexible work arrangement clause, which was quite detailed, was then a matter arising under the relevant agreement. Accordingly, the dispute settlement procedure could be utilised to determine if a request was refused on reasonable grounds per the clause within the flexible work arrangement clause:
“20.4 Flexible work arrangement requests will be considered and subject to approval by the employee's/work unit’s manager. All requests for a flexible work arrangement may only be refused on reasonable grounds related to the effect on the workplace. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service. [underline emphasis added by the Vice President].
[44] In my view, it is clearly the case that in the Victoria Police matter and in Brimbank, the flexible working arrangements clauses were expansive and declared that in each respective case, the employer must assess the employee’s request. In Victoria Police, the obligation within clause 14.3 of the Victoria Police Agreement was that the employer must assess the request in accordance with the provisions of s.65 of the Act; that is, on reasonable business grounds. In Brimbank, the employer’s obligation was declared to be that it could only refuse a request on reasonable grounds “related to the effect on the workplace”. [my emphasis]. It is noted that the agreement in the Brimbank decision was approved prior to the insertion of s.65(5A) of the Act which gives non-limiting examples of what are reasonable business grounds for refusing an employee’s request.
[45] None of the parties argued any jurisdictional issue before the Commissioner nor the Full Bench in Victoria Police. The Full Bench correctly stated that the issue at first instance before the Commissioner was whether the reasons for denying [the employee’s] request amounted to “reasonable business grounds” in accordance with clause 14.3 of the Victoria Police Agreement and s.65 of the Act. 8
[46] A term of an agreement may articulate whatever is agreed between an employer and employees to be the factors that must be considered by an employer when refusing an employee’s request. A term is certainly not limited to the provisions of s.65(5); it could require a more expansive scope of considerations. That is clear from paragraph 786 of the Explanatory Memorandum at [37].
[47] Returning to clause 67 of the CASA Agreement, simply acknowledging that employees have a right to request flexible working arrangements under the Act does not, in my view, result in any dispute about the reasonableness of a refusal to an employee’s request becoming a “matter arising” under the CASA Agreement. The clause would need to do more to overcome the firm prohibition at s.739(2)(a) of the Act.
Conclusion
[48] I am not satisfied that the terms of the CASA Agreement include any agreement that the Commission may deal with a dispute about whether the Respondent had reasonable business grounds under s.65(5) of the Act to refuse Mr Treston’s request for flexible working arrangements. For the sake of clarity, I am not satisfied that clause 67 of the CASA Agreement deals at all with the matter, being whether the Respondent had reasonable business grounds to refuse the request. Accordingly, it cannot be a matter arising under the CASA Agreement, as required by clause 8.1.1.
[49] For the reasons set out above, I am satisfied that I do not have jurisdiction to deal with the present dispute. As a result, I dismiss the application made by Mr Treston pursuant to s.739 of the Act.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
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1 Page 53 of the Digital Court Book.
5 The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria) v Victoria Police [2018] FWC 5695.
6 PN31-PN32.
8 [2019] FWCFB 305 at [3].