Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council  FWC 5 (2 January 2013)
In a classic case of good intentions gone wrong, the Fair Work Commission (FWC) has allowed some employees to have a nine day fortnight despite this being rejected by their employer during enterprise bargaining. FWC ruled that the flexibility clause in the agreement was itself flexible enough to allow the employees a nine day fortnight.
During the negotiations for the EA, the employer had repeatedly refused a union claim for a nine day fortnight, arguing instead that the 19 day month set-up, which delivered rostered days off, was a reasonable compromise.
Additionally, the employer accepted a more generic, employee friendly flexibility clause. Crucially however, that clause restricts the employer’s ability to refuse a request for flexibility on certain grounds. Using that, and the disputes settling procedure, the employees took the matter to FWC.
Despite being told the claim was already settled in the EA negotiations, FWC rejected the employer’s position by deciding the flexibility clause could be the vehicle to use to give the employees what they were unable to achieve at negotiations.
The lessons to be learnt from this are these: employers should not put a flexibility clause in an EA which includes a provision that the employer can only refuse the employee’s request on reasonable business grounds, but rather leave the whole issue as permitting requests, but going no further. Secondly, the clause should include a provision that explicitly excludes from the flexibility clause any issue that has been the subject of negotiations during the making of the agreement, and settled as part of those negotiations. Finally, disputes settling procedures clauses should be written carefully to exclude these type of provisions from arbitral powers of FWC or any other third party.