Commission upheld employers decision to end the flexible working arrangements of two fathers

Published 22 January 2017

Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047

A recent case in the Industrial Relations Commission of New South Wales has found that employers have the right to allocate and arrange work for employees and require employees to respond to reasonable directions, even if it disrupts longstanding flexible working arrangements.

In the case of Construction, Forestry, Mining and Energy Union (New South Wales Branch) v South Western Sydney Local Health District [2016] NSWIRComm 1047, the Industrial Relations Commission of New South Wales (the Commission) supported the decision of the South Western Sydney Local Health District (the Health District) to terminate the longstanding flexible working arrangements of two members of their staff in order to improve operational efficiency.

Two full-time painters (the Zammits) of the Health District had been granted flexible working hours for eight years due to their commitment as carers of primary school children.

In 2015, the Zammits were informed that their flexible workings hours of 6am to 2:30pm would revert to the standard hours of 7am to 3:30pm. The Health District argued this was due to the adoption of a “whole hospital” approach where an emphasis was placed on the “timely and efficient completion of tasks and duties”. This approach aimed to improve efficiency and resource management in Liverpool Hospital as it operated at a financial deficit of approximately $8.2 million in 2014-15.

The Construction, Forestry, Mining and Energy Union (New South Wales Branch) (the Union) argued the Health District should maintain the flexible working hours while the Zammits had one or more children in primary school, being until the completion of the 2018 and 2019 school years.

The Union claimed this should be undertaken for the following reasons:

  • The arrangements allowed the Zammits to share the responsibility of school drop off and pick up with their partners and denying the flexible hours would mean the children would have to be placed in after-school care, which the Zammits and their partners could not afford on top of their other expenses;
  • The arrangement was consistent with the relevant Award and the NSW Premier’s plan to make all government jobs “fully flexible by 2019”;
  • The Health District allowed women in nursing and administrative roles flexible arrangements which were not extended to employees in engineering roles;
  • The Anti-Discrimination Act 1977 did not require an application for flexible working arrangements to be granted only where it was mutually beneficial, however, the Zammits commencing work at 6am was beneficial to the Health District as it allowed them to perform painting work before staff, patients and visitors were admitted to those areas, meaning the work could be performed more efficiently; and
  • The start and finish times of the Zammits did not matter because most of the work was not urgent.

The Health District argued the Industrial Relations Commission of New South Wales (the Commission) should not make an order because the Liverpool hospital was functioning with increased budgetary constraints and all engineering staff had to work the same hours to improve operation efficiency. Further, although having the Zammits start at 6am did have some benefits, the following disadvantages and inefficiencies outweighed it:

  • If an issue was reported at or after 7am, the Zammits would have to pack up from the location they were painting and move to the new location, resulting in a loss of time and effort, and negatively impacted the Liverpool hospital’s operations;
  • Standard hours of work meant resources could more efficiently deal with emergency maintenance issues;
  • A 6am start time may disturb resting patients;
  • The “whole of Hospital” approach requiring standard hours increased teamwork, organisation, and cooperation;
  • The Zammits worked unsupervised at 6am leading to possible health and safety issues;
  • The Acting Building Engineer met with the trades and handymen at the end of each working day, requiring him to conduct two meetings to cover the Zammits and then later, the other staff, as the meetings could not be held concurrently. This prevented him from attending “other pressing matters”. Further, directions given to the Zammits at 2:15pm may be out of date by 6am the next day. Issues may occur after they left and would not be reprioritised until 7am the next day.


The Commission found the standard hours of work proposed by the Health District would not result in the painters performing work that was “unfair, unjust or unreasonable”. Further, the Commission found the Health District sought “to realign the Zammits’ hours of work in order to improve the operation efficiency of the Engineering Department and reduce costs by working smarter and improving organisation of work through improved supervision.”

As such, the application was dismissed and the Zammits were ordered to resume standard working hours from 9 January 2017.

Key Issues

This case demonstrates employers are not required to extend the flexible working arrangements of employees and if the request is denied to improve efficiency and productive performance, then a Commission is unlikely to intervene.

There is a similar test under the Fair Work Act 2009 (Cth) with respect to federal system employees, which provides an employer with the ability to reject a request for flexible working arrangements if it is based on ‘reasonable business grounds’. What amounts to reasonable business grounds will be determined on a case by case basis but can include factors such as if the arrangements would be too costly, there would be a negative impact on customer service or the arrangements would result in a significant loss in efficiency or productivity. This provision ensures that employers are not required to incur significant costs or inconvenience to the workplace in order to provide an employee with flexible work arrangements.

Read the full decision here

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.

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