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  4. Horsfall v State of Queensland (Department of Transport and Main Roads) - [2023] QIRC 329

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Horsfall v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 329

Horsfall v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 329

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Horsfall v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 329

PARTIES:

Horsfall, Trevor

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO:

PSA/2023/54

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

20 November 2023

MEMBER:

Pidgeon IC

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the appellant applied for a flexible work arrangement – where the appellant’s request for a flexible work arrangement was denied – where the appellant appeals the internal review decision – whether the decision was fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 27, 28, 562B, 562C

Public Sector Act 2022 (Qld) ss 40, 129, 131, 133

Queensland Public Service Officers and Other Employees Award – State 2015 cl 15

Transport and Main Roads Enterprise Bargaining Certified Agreement 2019

Work Health and Safety Act 2011 (Qld)

CASES:

Fraser v State of Queensland (Queensland Police Service) [2023] QIRC 089

Gilmour v Waddell & Ors [2019] QSC 170

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Reasons for Decision

Background

  1. [1]
    Mr Trevor Horsfall (‘the Appellant’) is employed by the State of Queensland (Department of Transport and Main Roads) (‘the Respondent’) as a Senior Network Officer (‘SNO’) within the Revenue Protection Unit of Translink. The Appellant has been employed by Revenue Protection since 10 November 2011 and currently works as a full-time non-continuous shift worker assigned to Team GOLF on the Gold Coast. In his substantive role as a SNO, Mr Horsfall works a four-week rotating line roster.

Mr Horsfall’s request for a flexible working arrangement

  1. [2]
    Mr Horsfall made an application for a flexible working arrangement (‘FWA’) pursuant to the Industrial Relations Act 2016 (Qld) s 27 (‘the IR Act’) on 27 October 2022. Specifically, Mr Horsfall requested a shift swap between his current team, GOLF, and the alternative Gold Coast SNO team, SIERRA, during certain shifts. Mr Horsfall requested to swap two shifts from 12:00 pm to 9:30 pm (9.5 hours) on his existing roster with the Wednesday short-day shifts on the team SIERRA roster from 6:00 am to 12:00 pm (6 hours). The current shifts which Mr Horsfall wants to swap occur once a month on a Tuesday and Friday. In his FWA request, Mr Horsfall said that he would be prepared to travel to Brisbane to work in a Brisbane-based SNO team if it would assist the Respondent in accommodating his request.
  1. [3]
    In an email to Mr Peter Walsh, Director of the Revenue Protection Unit in Translink on 27 October 2022, the Appellant explained that the reason for his FWA request was his custody and care arrangements for his daughter. Mr Horsfall wrote:

… As per a discussion we had before I moved down to the Gold Coast team in regards to the custody arrangements I have for my daughter and two shifts where I use [sic] to work AM shifts in Brisbane but those two shifts moved to Mid shifts down the Gold Coast and I let you know that I was organising my mother to care for my daughter until I arrived home from work.

This can no longer happen due to personal issues…

The initial decision dated 10 November 2022

  1. [4]
    The Appellant’s request for an FWA was refused Mr Walsh on 10 November 2022. Mr Walsh cited the Respondent’s safety and industrial relations obligations and said:

… I am always happy to consider flexible work arrangements within the scope of our current industrially agreed roster and within the operational requirements of the business.

As you would be aware, the SNO rosters were designed in consultation with employees and their Union and part of this is to ensure each employee has the same number of shift patterns and penalty entitlements. The existing roster you have been assigned to already has a degree of flexibility, with a 72.5 hour fortnight being worked in 8 shifts a fortnight instead of 10 shifts a fortnight and 3 consecutive days off every 2 weeks out of the four weeks.

Not all positions within TMR have a high level of flexibility due to the nature of the work being performed. As a SNO you are required to work within a team where safety requirements can be impacted if there are insufficient staff to complete required rostered shifts.

I must consider the impacts on the broader team and whether your requested flexible work arrangements can be operationally accommodated. The proposed roster you have put forward would require negotiation to change rostering arrangements that potentially affects the entire SNO workforce and cannot be considered a reasonable option at this time. As I mentioned I am open to commencing a process with SNO’s to determine what a more flexible roster could look like and ideally one that could accommodate arrangements such as those that you have mentioned.

I fully understand that this is not the answer you wanted to hear, but it is an instance where operational business requirements have to be considered.

As discussed I am happy to work with you on another part time arrangement that would meet your flexible needs…

Mr Horsfall’s individual employee grievance and the administrative decision dated 3 February 2023

  1. [5]
    Mr Horsfall submitted an individual employee grievance regarding Mr Walsh’s decision on 11 January 2023, in accordance with Directive 11/20 Individual Employee Grievances. The review was undertaken by Mr Graham Davis, General Manager of Translink, who wrote to Mr Horsfall on 3 February 2023 explaining his decision to uphold Mr Walsh’s earlier decision to refuse the FWA request.
  1. [6]
    In his employee grievance, Mr Horsfall said:

As a result of Mr Peter Walsh’s decision, I am unable to meet the care and custody arrangements for my 11-year-old daughter; thereby financially disadvantaging me and my family as I am now required to use my leave provisions to meet care arrangements which results in a loss of shift penalties. This has a significant and detrimental impact on my leave balance.

  1. [7]
    Mr Davis considered Mr Horsfall’s individual employee grievance and wrote, ‘In accordance with s 28(1)(c) of the Act, I have made the determination to refuse your request, and I consider the decision made by Mr Walsh was fair and reasonable in the circumstances.’ Mr Davis went on to provide his reasons for decision. Relevantly, Mr Davis wrote:

Operational considerations

…

  • an interchangeable shift swap is not [an] operationally viable option while a teams-based rostering arrangement is in place.
  • all SNO rosters are designed in consultation with employees and unions to ensure that the same number of shift patterns and penalty entitlements are applied.
  • safety requirements would be impacted if there are insufficient staff to complete the required rostered shifts.
  • commitment to resourcing and safety standards that cannot be compromised when considering operational and individual circumstances.
  1. [8]
    Mr Davis went on to consider the impact of Mr Horsfall’s request to work between teams. As a result, Mr Horsfall would no longer be assigned to one specific SNO team. However, it is an inherent requirement of the role to operate as part of an allocated team and deploy with that team at each shift. The roster is teams-based, where all employees have access to a fair and equitable distribution of shifts within a four-week cycle. Mr Davis noted Mr Walsh’s offer for Mr Horsfall to swap to a new team if the roster lines of another team would suit his personal circumstances and said he considered this option demonstrates a willingness from TMR to make adjustments for Mr Horsfall where possible.
  1. [9]
    Mr Davis also considered Mr Horsfall’s argument regarding the financial disadvantage posed to him by the Respondent rejecting his FWA request. Mr Davis concluded that the alternative flexible working options put to him by Mr Walsh did not include him using his own leave entitlements. Mr Davis said, ‘While utilising an appropriate type of pre-approved leave to assist you with your caring responsibilities until a more sustainable arrangement is agreed upon may be an option you wish to explore; the decision to request this is entirely at your discretion and is not at the request of the department.’
  1. [10]
    Further, Mr Davis addressed the reference made by Mr Horsfall in his grievance to the Public Service Commission’s Flexible Work Request Checklist. Mr Davis reiterated that the checklist is a consideration and a guide, but the focus is on a case-by-case basis. Mr Davis said that Mr Horsfall’s personal circumstances had been taken into consideration, however Mr Horsfall’s request could not be supported due to the Respondent’s operational requirements. Mr Davis says, ‘any departure from a teams-based rostering system would result in significant workplace change and require consultation with the SNO workforce which is not an option at this time’.
  1. [11]
    In addition, Mr Davis responded to what he says is a misunderstanding on Mr Horsfall’s part regarding the rosters worked by the 2IC Network Shift Supervisors (‘NSS’). Mr Horsfall said in his grievance that shift supervisors were able to work between teams on an interchangeable basis, however Mr Davis says that the NSSs swap to a new team for an assigned period of time and assume the rostered shifts of that team in full. The purpose of the rotation is to enable the 2ICs to improve their frontline management and leadership skills with a practical application across a broad and diverse range of team dynamics and situations.
  1. [12]
    Mr Davis proceeds to reiterate Mr Walsh’s offer to work with Mr Horsfall to explore other options to facilitate a flexible working arrangement that assists him and is operationally viable, including a part-time arrangement or a transfer to a Brisbane-based team or the alternative Gold Coast team, SIERRA. Mr Davis says he will request that Mr Walsh meet with Mr Horsfall to discuss these options further and other ways the Respondent could support Mr Horsfall.
  1. [13]
    Ultimately, Mr Davis concludes, ‘As per s 28(2) of the Act, I consider for the reasons explained to you above, the decision to refuse your flexible working agreement [has] been made on reasonable grounds’.

Internal review decision dated 10 March 2023

  1. [14]
    Mr Horsfall requested an internal review of Mr Davis’s decision on 21 February 2023 on the basis of the following:
  • Mr Horsfall says that Mr Davis did not acknowledge staffing discrepancies between SNO teams GOLF and Sierra. The Appellant says that the resourcing and safety standards of the teams would be more equitable if his FWA request was approved;
  • The Appellant says that Mr Davis’s conclusion that it is an inherent requirement of the SNO role to operate as part of an allocated team does not appear in policy or legislation, nor does Mr Davis’s conclusion that SNOs are not permitted to self-select team assignments;
  • Mr Walsh and Mr Davis’s offer for Mr Horsfall to swap teams does not fix the problem as both teams use the same roster format;
  • Mr Davis failed to consider TMR’s ‘Flexible Working Statement’ which identifies engaging ‘regularly with your team and across teams’; and
  • Mr Davis incorrectly found that approving Mr Horsfall’s FWA would require consultation with the SNO workforce as the change would only be to his roster and no other SNO would be impacted.
  1. [15]
    On 24 February 2023, Mr Neil Scales, the Director-General of the Respondent, appointed Ms Sally Stannard, Deputy Director-General of Translink, as his authorised delegate to consider and make a decision with respect to the Appellant’s internal review request.
  1. [16]
    Ms Stannard provided an internal review outcome decision letter to Mr Horsfall on 10 March 2023 confirming the administrative decision of Mr Davis on the basis that it was fair and reasonable in the circumstances. Ms Stannard concluded:

Having undertaken a comprehensive review of all of the information before me, including your FWA request, your individual family care arrangements, the type of work you perform, the impact of your FWA request on other employees, the impact on customer service requirements, the ability to maintain compliance, operational and safety standards, the industrial relations parameters as well as the guiding principles of fairness, diversity, equity and inclusion, I have formed the view that the decision made by Mr Davis, dated 3 February 2023, concerning your employee grievance, dated 11 January 2023, was fair and reasonable in the circumstances.

  1. [17]
    Ms Stannard proceeded to provide her reasons for decision under the headings ‘operational reasons’, ‘industrial relations reasons’ and ‘personal reasons’.

Operational reasons

  1. [18]
    Ms Stannard concurs with Mr Davis that implementing Mr Horsfall’s FWA would have operational and safety impacts.
  1. [19]
    For context, the SNO role involves field work. Revenue protection and compliance activities are performed across bus, ferry, light rail and rail services on the TransLink network. SNOs are responsible for checking paper tickets and go cards, issuing penalty infringement notices and warning notices, proactively managing the safety of passengers, and identifying and responding to personal safety incidents and medical emergencies.
  1. [20]
    TMR has obligations under the Work Health and Safety Act 2011 (Qld) (‘the WHS Act’) to ensure the safety and wellbeing of SNOs. Each team is purposefully comprised of an even number of employees to enable SNOs to be deployed in pairs.
  1. [21]
    Ms Stannard says that Mr Horsfall’s proposal of redistributing SNO employees across teams SIERRA and GOLF such that there are two equal teams of seven SNOs is therefore not a viable option from an operational and safety perspective. It would limit the locations where SNOs could be deployed, noting the requirement to deploy SNOs in pairs. This would reduce TMR’s services to the community.

Industrial relations reasons

  1. [22]
    Ms Stannard is satisfied that Mr Davis carefully considered the industrial relations implications associated with Mr Horsfall’s FWA request as well as TMR’s Flexible Working Statement. Ms Stannard says that Translink supports requests from employees to work flexibly, where appropriate. Ms Stannard says there is ‘no one size fits all – everybody and every situation is different’.
  1. [23]
    Furthermore, Ms Stannard acknowledges Mr Horsfall’s entitlement to make an FWA request under the IR Act and says that where a mutually agreeable FWA cannot be reached, s 28 of the IR Act enables the employer to refuse the request on reasonable grounds.
  1. [24]
    Ms Stannard explains that managers must comply with their obligations under s 40 of the Public Sector Act 2022 (Qld) (‘the PS Act’) and there are many factors to when deciding whether to grant an FWA request. One such factor is the industrial relations framework governing the requesting employee’s employment.
  1. [25]
    Ms Stannard points to the Queensland Public Service Officers and Other Employees Award – State 2015 (‘the Award’). She explains that SNOs are employed under the Award as non-continuous shift workers. SNOs are required to work a 72.5-hour fortnight across a 4-week rotating line roster from Monday to Sunday. Ms Stannard says that the Respondent has a duty to ensure that FWAs which alter these rostered hours comply with the Award and can be both reasonably and operationally accommodated.
  1. [26]
    Ms Stannard explains that these rosters were created in consultation with employees and their union/s, incorporating flexible work practices, and mutually agreed upon by TMR and the majority of affected workers. By enabling SNOs to work their 72.5-hour fortnight across eight days instead of 10, SNOs have an additional day off each week on top of the two consecutive scheduled days off each week per cl 15.1(f) of the Award. As a result, SNOs have six days off each fortnight, or three days off each week. SNOs also receive one ‘short’ shift per fortnight of six hours, as opposed to a 9.5-hour shift.
  1. [27]
    Ms Stannard says that these shift patterns ensure that all full-time SNOs receive equal penalty shifts within their four-week roster including:
  • Seven ‘PM’ shifts which attract a 15% penalty;
  • Two Saturday shifts which attract a 150% penalty; and
  • Two Sunday shifts which attract a 200% penalty.
  1. [28]
    By requesting to swap two 9.5-hour shifts for two 6-hour shifts, Mr Horsfall’s requested FWA would result in a reduction to his working hours. In effect, Mr Horsfall would work fewer hours than the minimum 72.5 hours prescribed for a full-time SNO under the Award. Ms Stannard says that as Mr Horsfall has advised that he does not wish to work on a part-time basis, his request cannot be industrially accommodated.
  1. [29]
    Further, Ms Stannard says that Mr Horsfall’s proposal would lead to an inequitable distribution of penalty shifts across the SNO cohort which would impact other employees’ employment arrangements.
  1. [30]
    Ms Stannard states that she has analysed the March 2023 teams of the CHARLIE, DELTA, GOLF, SIERRA and ZULU teams and the roster swap he has requested could not be accommodated without contravening cl 15.1(f) of the Award which requires TMR to provide Mr Horsfall with a prescribed number of consecutive scheduled days off each week/fortnight.
  1. [31]
    Finally, Ms Stannard notes Mr Horsfall’s point that Mr Davis’s offer to swap to another team would not meet Mr Horsfall’s needs as all teams operate on the same roster pattern. Ms Stannard says, ‘Notwithstanding this, noting the above, it is apparent to me that there are genuine and insurmountable industrial relations barriers to accommodating your FWA request’.

Personal reasons

  1. [32]
    Ms Stannard notes that Mr Davis considered Mr Horsfall’s family care arrangements and says that she too has given genuine and reasonable consideration to Mr Horsfall’s personal circumstances. Ms Stannard says that she has reviewed the PSC’s Flexible Work Checklist and the Key Accountabilities and Responsibilities Guide. She says she understands that all individuals have different family and personal needs which may change over time and impact on work.  Ms Stannard says with regard to Mr Horsfall’s circumstances:

I acknowledge the dilemma you must be facing by potentially not meeting your custodial family care arrangements. Balancing work and family commitments can be difficult, and tension exists when shift work clashes with family care arrangements I also acknowledge that there is no ‘one size fits all’ answer to flexible work arrangements and am aware of the different concepts of ‘family’.

  1. [33]
    With that being said, Ms Stannard says that the SNO role is a specialised frontline position. The role itself and the responsibilities it entails are not based on a Monday to Friday, 9:00 am to 5:00 pm working pattern. Rather, the inherent requirements of Mr Horsfall’s role relates to compliance and operates in the field under an industrially agreed upon roster pattern where SNOs are deployed in teams.
  1. [34]
    Ms Stannard says that while she is sympathetic to Mr Horsfall’s personal circumstances, his FWA request ‘cannot operationally or industrially be accommodated’.

Legislative framework

  1. [35]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  2. [36]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [37]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

  1. for a fair treatment decision—a public sector employee aggrieved by the decision…
  1. [38]
    Flexible working arrangements are dealt with by ch 2, pt 3, div 4 of the IR Act.
  1. [39]
    The IR Act relevantly provides:

27  Request for flexible working arrangements

  1. An employee may ask the employee’s employer for a change in the way the employee works, including—
  1. the employee’s ordinary hours of work; and
  1. the place where the employee works; and
  1. a change to the way the employee works, for example, the use of different equipment as a result of a disability, illness or injury.
  1. The request must—
  1. be in writing; and
  1. state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and
  1. state the reasons for the change.

28  Decision about request for flexible working arrangements

  1. The employer may decide to—
  1. grant the request; or
  1. grant the request in part or subject to conditions; or
  1. refuse the request.
  1. The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.
  1. The employer must give the employee written notice about its decision within 21 days after receiving the request.
  1. If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state—
  1. the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and
  1. that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6.
  1. [40]
    In addition, the WHS Act relevantly provides:

19  Primary duty of care

  1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
  1. workers engaged, or caused to be engaged by the person; and
  1. workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking.
  1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
  1. [41]
    The Appellant’s employment is subject to the Transport and Main Roads Enterprise Bargaining Certified Agreement 2019 and the Queensland Public Service Officers and Other Employees Award – State 2015 (‘the Award’).
  1. [42]
    The Award relevantly provides:

3.  Definitions and interpretation

Unless the context otherwise requires, in this Award:

…

non-continuous shift work means work regularly rotated in accordance with a roster which prescribes 2 or more shifts (day, afternoon or night) per day, but does not cover a 24 hour per day operation over a 7 day week (see continuous shift work)

15.  Hours of duty

15.1  Ordinary hours of duty

  1. The ordinary hours of duty for all employees covered by this Award, exclusive of meal breaks, shall be an average of 36.25 hours per week and 7.25 hours per day, with a maximum of 9.5 hours per day for day workers, or other hours as recorded in the table below:

…

  1. Notwithstanding the working hours arrangements recorded in clause 15.1(a), an employer and an employee or groups of employees may agree that the ordinary hours of work are to exceed 8 hours on any day, thus enabling one or more days to be taken as a rostered day off during a particular work cycle.

…

  1. Different methods of working a 38 hour week may apply to individual employees, groups or sections of employees in each location concerned.

…

  1. Scheduled days off - where work is performed on other than a Monday to Friday basis
  1. Unless prescribed elsewhere in this Award all employees whose ordinary hours of duty may be worked on days other than Monday to Friday shall be entitled to not less than two consecutive scheduled days off duty each week.
  1. In lieu of two whole days off in each week, an employee may be allowed in each fortnightly period either one scheduled day off in one week and three consecutive scheduled days off in the other week or four consecutive scheduled days off.
  1. Two consecutive scheduled days off, one at the end of one week and one at the beginning of the following week may be counted as meeting the requirements of clause 15.1(f)(i).

15.2  Shift work arrangements

  1. Shift work may be introduced to meet operational requirements. Such shift work shall be worked in accordance with a roster mutually agreed between the chief executive and the majority of employees directly affected. Any discussions concerning the introduction of shift work or roster variations shall be conducted in accordance with the provisions of clause 6.2 of this Award.
  1. A roster setting out the employees' days of duty and starting and finishing times on such days shall either be displayed in a convenient place or made available electronically to employees at least one work cycle in advance.
  1. A shift worker shall not perform more than two consecutive shifts (e.g. day shift/afternoon shift; afternoon shift/night shift).
  1. Changes within a roster shall be by agreement between the employer and the employee concerned but failing agreement 24 hours' notice of any change in the roster must be given by the employer or double time is to be paid for the employee's next shift.
  1. Subject to meeting operational requirements, rostered shifts may be mutually exchanged between employees provided such exchange occurs within the same pay period.

18.9  Fatigue leave/rest period after overtime

  1. An employee who works so much overtime between the termination of ordinary work on one day and the commencement of ordinary work on the next day so that 10 consecutive hours off duty has not occurred shall be released after completion of such overtime until 10 consecutive hours off duty occur without loss of pay for ordinary working time occurring during such absence.
  1. If, on the instructions of the employer, an employee resumes or continues ordinary work without having had 10 consecutive hours off duty the employee shall be paid double rates until released from duty and shall then be entitled to be absent until 10 consecutive hours off duty has occurred without loss of pay for ordinary working time occurring during such absence.
  1. The provisions of clause 18.9 shall apply to shift workers who rotate from one shift to another as if 8 hours were substituted for 10 hours when overtime is worked:
  1. for the purposes of changing shift rosters; or
  1. when a shift worker does not report for duty; or
  1. where a shift is worked by arrangement between the employees themselves.
  1. Clause 18.9 does not apply to employees:
  1. who reside or remain on or about their place of work and are required to perform duties on an intermittent basis outside their ordinary hours of duty; or
  1. who work 2 hours or less when recalled to duty, inclusive of travelling time, on one or more recalls.
  1. The provisions of clause 18.9(d), do not apply to forestry officers recalled to fight fires.

Appeal principles

  1. [43]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that ‘the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable’.
  1. [44]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
  1. [45]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [46]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [47]
    With respect to decisions about requests for flexible working arrangements, s 28(2) of the IR Act provides that ‘The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds’.
  1. [48]
    The principles to consider in determining whether a decision is 'unreasonable' were set out by Ryan J in Gilmour v Waddell & Ors:[1]

The focus of a review on the reasonableness, or unreasonableness of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statue conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[2]

Grounds of appeal

  1. [49]
    Mr Horsfall filed his appeal on 31 March 2023, within 21 days of receiving the internal review decision on 10 March 2023. I am satisfied that the Appellant may appeal the decision and I summarise his grounds of appeal as follows:
  • Mr Horsfall believes the decision is unfair, unreasonable and adversely affects him and his family.
  • Mr Horsfall says that the decision-maker of the internal review, Ms Stannard, was either provided misinformation or misinterpreted information provided by Mr Davis and Mr Walsh.
  • The Appellant says there are no operational or safety impacts associated with implementing his FWA request.
  • Mr Horsfall maintains that there is no requirement for SNOs to work in pairs. He says SNOs are sometimes deployed in teams of three, and SNO teams are not comprised of an even number of employees.
  • The Appellant says that Ms Stannard has misunderstood his FWA request as a request that he swap with another SNO. Rather, Mr Horsfall says he is seeking to work two shifts per four-week cycle in another team, which he says would not require a roster change for another SNO.
  • Mr Horsfall is prepared to accept that the change in his rostered hours from 72.5 hours a fortnight to 65.5 hours a fortnight constitutes a part-time arrangement.
  • He says his FWA request would not provide him with a financial advantage in terms of access to greater shift penalties, nor would it result in an inequitable distribution of shift penalties across the SNO cohort.
  • The Appellant says his FWA request would not necessitate changes to the employment arrangements of other employees.
  • Mr Horsfall contends that Ms Stannard has applied cl 15.1 of the Award selectively and says that cl 15.1(d) and (f) could apply to his request.
  • Mr Horsfall reiterates that denying his FWA means that he is unable to meet the care and custody requirements of his daughter. He says this results in financial disadvantage as he uses his leave entitlements to meet his care arrangements and misses two shifts and associated penalties.

Respondent’s submissions

  1. [50]
    The Respondent submits that its decision to refuse Mr Horsfall’s FWA request was fair and reasonable given the Respondent’s safety and industrial relations obligations and seeks an order from the Commission which confirms the internal review decision dated 10 March 2023.
  1. [51]
    The Respondent’s submissions provide background information to the appeal which is set out above at [1]-[34], except to say that the Respondent says it proposed alternative working arrangements to Mr Horsfall to partly meet his FWA request between 10 March 2023 to 23 April 2023 and these attempts were unsuccessful in resolving the matter.

Mr Horsfall’s duties and responsibilities as a Senior Network Officer

  1. [52]
    At the outset of its submissions, the Respondent explains Mr Horsfall’s duties and responsibilities as an SNO as follows:
  1. Performing revenue protection and compliance activities in accordance with legislation across bus, ferry and rail services on the TransLink network by:
  1. Checking of ticketing products and equipment (paper tickets and go cards)
  2. Issuing Penalty Infringement Notices and Warning Notices
  3. Proactively managing the safety of passengers travelling on the TransLink network and identifying and responding to personal safety incidents and medical emergencies
  1. Partnering with key stakeholders including Queensland Rail, bus operators and the Queensland Police Service, to deliver revenue protection, safety and security on the public transport network.
  1. Exercising all legislative powers using good judgement and consistency when dealing with offending persons, in line with relevant legislation, standards, procedures and policies.

The SNO roster

  1. [53]
    The Respondent says that SNOs are non-continuous shift workers engaged on a four-week rotating line roster involving teams-based deployment. The ordinary working hours across the monthly roster for a full-time SNO is 145 hours performed across a combination of 16 of the following shifts:
  1. Day shift – 06:00 am – 15:30 pm
  1. Short day shift – 06:00 am to 12:00 pm
  1. Afternoon shift – 12:00 pm to 12:30 pm
  1. Night shift – 14:00 pm to 23:30 pm
  1. [54]
    Full-time SNOs have one rostered day off per week and two consecutive scheduled days off per week. The Respondent submits this roster pattern was designed in consultation with its employees and their union, and developed in accordance with the Award.
  1. [55]
    The Respondent says that SNOs are deployed, at minimum, in pairs due to the nature of the role and the dangers associated with the work it performs. The Respondent contends the teams-based system is necessary to ensure that it discharges its duty of care under the WHS Act.
  1. [56]
    In the monthly roster, Mr Horsfall is rostered to work one Friday afternoon shift and one Tuesday afternoon shift each month. The Respondent says it can accommodate Mr Horsfall not working either of these shifts by implementing a part-time working arrangement.
  1. [57]
    Furthermore, the Respondent says that there are only two Wednesday short day shifts on the roster for Gold Coast Based SNOs. The Respondent says it cannot accommodate Mr Horsfall’s request to be rostered to the Wednesday short day shift with team SIERRA in the third week of the roster for two reasons:
  • Firstly, this arrangement would mean that Mr Horsfall would not have a minimum 10-hour break before commencing the shift, as required by cl 18.9 of the Award for health and safety reasons. The Appellant’s prior rostered shift with team GOLF ends at 21.30 pm on Tuesday evening.
  • Alternatively, if Mr Horsfall was not rostered on that Tuesday afternoon shift (which the Appellant has requested and the Respondent says it cannot operationally accommodate), the Respondent is still unable to roster Mr Horsfall to the Wednesday short term shift with SIERRA. It would mean that Mr Horsfall would not be afforded his scheduled day off or consecutive scheduled days off. This would breach cl 15.1(f) of the Award and compromise the Respondent’s health and safety obligations.
  1. [58]
    The Respondent also says that it cannot accommodate Mr Horsfall’s request for a Wednesday short day shift in Brisbane as there are no Brisbane-based SNO teams rostered for a Wednesday short day shift. The Respondent submits it is not viable for it to create an additional Wednesday short day shift to deploy the Appellant on due to its duty of care obligations.

Alternative solution

  1. [59]
    The Respondent has proposed to assist Mr Horsfall in meeting his caring responsibilities by implementing a temporary part-time working arrangement. In effect, Mr Horsfall would not be rostered on either a Friday afternoon shift during the first week of the roster or a Tuesday afternoon shift during the third week of the roster.
  1. [60]
    As a result, Mr Horsfall would be working 9.5 fewer hours per fortnight and this would be reflected in his fortnightly pay. The Respondent says this is only 2.5 hours less than the 65.5 hours requested by Mr Horsfall in his appeal notice.

The Respondent says the decision was fair and reasonable

  1. [61]
    Overall, the Respondent says that it gave fulsome consideration to Mr Horsfall’s FWA request and its decision to refuse the FWA in full was fair and reasonable. It says that the decision was made on the basis of the Respondent’s operational requirements and the relevant legislative instruments which govern Mr Horsfall’s employment conditions.
  1. [62]
    The Respondent says that for a decision to be unreasonable, the Commission has previously found that the decision must lack evidence and intelligible justification.[3] Where a decision may be reasonably justified, it is not an unreasonable decision. The Respondent argues that its decision sets out clear considerations and provides intelligible justification for refusing Mr Horsfall’s FWA request.
  1. [63]
    Finally, the Respondent submits that in line with Mr Horsfall’s indication in his appeal notice that he would be willing to work part-time to facilitate his caring needs, the Respondent has proposed a reasonable part-time working arrangement.

Appellant’s submissions

  1. [64]
    Mr Horsfall says that the Respondent’s decision to refuse his FWA request was unfair and unreasonable as regard was not given to his special circumstances involving care arrangements for his daughter. He says that multiple of his requests have been denied and the Respondent has not made a genuine effort to consult with him or his supervisor to accommodate his circumstances.
  1. [65]
    The Appellant acknowledges the alternative working arrangements proposed by the Respondent, namely a temporary part-time arrangement. He further acknowledges that initially, he was willing to work part-time but says that his circumstances have changed. Mr Horsfall reiterates that he has made an FWA request to suit his daughter’s custody arrangements ‘without the negative financial impact of reducing his employment fraction’. Mr Horsfall points to the current cost of living and says that reduced hours would result in a reduced income, which would cause him financial stress. Working part-time would mean that he loses shifts and their associated penalties.
  1. [66]
    Mr Horsfall says that without his requested FWA, he would either be unable to care for his daughter or he would continue to use his leave entitlements to meet his daughter’s caring needs which would be detrimental to his leave balance.
  1. [67]
    Mr Horsfall also submits he believes another SNO in similar circumstances involving custody arrangements was able to swap his shifts and this is allowed for in the Translink Network Supervisor Manual.
  1. [68]
    Moreover, Mr Horsfall says that the decision-maker, Ms Stannard, did not have complete or accurate information before her about the operational practices of the SNO cohort or the alternative rostering options presented by him. In summary, Mr Horsfall says:
  • Ms Stannard incorrectly interpreted the information provided by Mr Davis and Mr Walsh regarding operational impacts of the FWA on safety as Mr Davis submits no such impacts exist.
  • There has never been a requirement for SNOs to work in pairs. Sometimes they are deployed in teams of three.
  • The SNO teams are not comprised of an even number of employees. Therefore, the FWA would not reduce TMR’s service to the community. Mr Horsfall rejects Ms Stannard’s assertion that a team of seven is not viable.
  • His request has been misunderstood as a request to swap with another SNO, but this is not the case.
  • He does not propose to compromise operational or safety impacts.
  • Mr Horsfall says his proposal would not impact the employment arrangements of other SNOs in the cohort.
  • Rather, Mr Horsfall wants to ‘complete four shifts over a four-week roster cycle in (two) other teams’.
  • The Appellant argues that his proposal would not provide him with a financial advantage in terms of greater shift penalties, nor would it result in an inequitable distribution of shift penalties across the cohort.
  • Mr Horsfall says the Respondent has applied cl 15.1 of the Award selectively. He says that on his interpretation of clauses 15.1(d) and (f), different methods of working may apply by mutual agreement and rostered days off can be taken at a time suitable to the employee and employer.
  1. [69]
    The Appellant contends that the decision was unfair and unreasonable as the Respondent has failed to consider alternative rostering arrangements which meet the legislative, health and safety requirements identified by the Respondent.
  1. [70]
    The Appellant says that on 21 July 2023, after the decision was made on 10 March 2023, Mr Horsfall emailed the Respondent with a proposed roster for his FWA which aligns with the current rosters of ZULU (a Brisbane-based SNO team) and SIERRA (the alternative Gold Coast team).
  1. [71]
    He says he designed a roster, spread over multiple teams, which would enable him to take a 10-hour break between consecutive shifts and take two consecutive days off in accordance with cl 15.1(f) of the Award.
  1. [72]
    Mr Horsfall says that his proposed roster would result in one instance per month where a 10-hour break period between shifts could not be met, and he proposes to use 1.5 hours of annual leave on these occasions to compensate the shortfall. Mr Horsfall contends this is no different to an employee finishing early due to illness and there are current practices in place to accommodate this without compromising SNO safety.
  1. [73]
    By refusing his FWA in light of this proposed roster, Mr Horsfall says the Respondent has not genuinely attempted to resolve the matter.
  1. [74]
    Mr Horsfall outlines the following proposals made by him:
  • He is willing to swap his Friday afternoon shift during the first week of the roster to Team ZULU (a Brisbane-based team) in the same week;
  • He could swap his Tuesday afternoon shift on the third week of the roster to a short-day shift on Wednesday with team SIERRA and a day shift on Thursday with team ZULU; and
  • Alternatively, ZULU is rostered to work a Wednesday short-day shift as well as a Thursday day shift and Mr Horsfall would be willing to work these shifts.
  1. [75]
    Mr Horsfall submits that on 11 August 2023, the Respondent was able to ‘swap two of my four shift swaps’ in line with its operational and health and safety requirements, and he remains open to commence further consultation with the Respondent to reach an agreed outcome for his FWA.
  2. [76]
    However, he submits that the current decision ought to be set aside as it was unfair and unreasonable in the circumstances.
  1. [77]
    Mr Horsfall submits that the decision constitutes adverse action as he has made multiple requests which have been denied and there has been no genuine effort by the Respondent to accommodate any request.

Respondent’s submissions in reply

  1. [78]
    In its reply submissions, the Respondent says that the roster proposal addressed in Mr Horsfall’s submissions relates to their most recent FWA negotiations of 21 July 2023 and is not the FWA request of the original appeal. The Respondent submits that these submissions are out of scope and should not be considered.
  1. [79]
    However, the Respondent notes that further to its consultation efforts set out in the decision letter, it has since offered that Mr Horsfall swap teams to a new roster pattern, however the Appellant did not respond to this offer.
  1. [80]
    The Respondent reiterates its engagement in direct and genuine consultation with the Appellant regarding his FWA request of 27 October 2022 and says both parties have engaged in written communication which is preferable due to the complexities of explaining legislative requirements and reference to visual roster patterns.
  1. [81]
    The Respondent denies providing a roster proposal that would cause Mr Horsfall financial detriment. The Respondent’s part-time work proposal was in response to Mr Horsfall’s request for a part-time work arrangement. The Respondent says it is unclear what the Appellant is seeking, as Mr Horsfall says in his appeal notice that he would accept a part-time arrangement but later rejects a part-time arrangement in his submissions of 27 September 2023.
  1. [82]
    The Department maintains that it could not accommodate Mr Horsfall’s FWA request as it would breach the relevant legislative instruments which govern the Appellant’s employment conditions. Its submissions repeat that:
  • Mr Horsfall’s proposal would breach cl 15.1(f) of the Award by preventing him from receiving at least two consecutive ‘scheduled days off’;
  • SNOs are deployed in teams of two for safety reasons and this is necessary for the Respondent to meet its duty of care obligations under the WHS Act;
  1. [83]
    The Respondent goes on to explain that Mr Horsfall is unable to swap two shifts in team ZULU as his partner works in this team. The Department considers it an ‘unacceptable risk’ for SNOs who are in a personal relationship to work together in the same team as their judgment may be impaired ‘if their partner is being subjected to offensive or abusive behaviour by members of the public, when discharging their duties as a SNO.’ The Respondent says Mr Horsfall has completed a conflict-of-interest form for this purpose and was advised of the outcome that he could not work in team ZULU.
  1. [84]
    Further, the Respondent acknowledges that the Translink Network Supervisor manual provides for shift swaps in exceptional circumstances and cl 15.2(e) of the Award  provides for rostered shifts to be mutually exchanged between employees, provided such exchange occurs within the same pay period. However, the Respondent says it has an obligation to review these shift swaps to ensure they are legislatively compliant. Again, the Respondent says that the shift swaps requested do not comply with the Award, when combined with his other shifts. Given that Mr Horsfall’s submissions of 27 September 2023 state that he is ‘not seeking to swap with another SNO’, the Respondent says it is unclear what he is seeking.

Consideration

The progress of the appeal

  1. [85]
    This matter has had a long history. It was lodged on 31 March 2023 after Mr Horsfall had exhausted the internal grievance process. On 17 April 2023, the Respondent requested, and was granted, an extension of time to file its submissions as it was seeking a potential resolution of the matter. On 24 April 2023, the Respondent sought a further extension on the basis that the Respondent was continuing to explore resolution of the matter with Mr Horsfall. At that point, I vacated directions and placed the file in abeyance pending advice from the parties regarding the progress of the matter.
  1. [86]
    It appears from the correspondence on file that between May 2023 and August 2023, discussions were continuing between the parties with various suggestions being made by both parties. On Monday 28 August 2023, Mr Horsfall included the Registry in an email replying to the Respondent and indicating that its proposal was not acceptable to him and thanking them for the time taken to respond to his proposal.
  1. [87]
    On 30 August 2023, I mentioned the matter with a view to putting directions in place to hear the appeal. Following that matter, directions were issued requiring the parties to make written submissions. The written submissions are outlined above. To the extent that those submissions relate to the decision of Ms Stannard, they will inform my consideration of the matter. Where the submissions address the ongoing negotiations regarding the series of options proposed by both the Respondent and Mr Horsfall in the months following the lodgement of the appeal, they will not be considered. This is because the question before me is whether the decision of Ms Stannard was fair and reasonable at the time it was made. 

Ms Stannard’s decision addressed the matters raised by Mr Horsfall in his request for review and contained sufficient reasoning for Mr Horsfall to understand the basis for the decision

  1. [88]
    The internal review decision of 10 March 2023 is seven pages long and provides Mr Horsfall with a detailed explanation of: actions Ms Stannard took to review Mr Davis’s decision; the information she considered in undertaking the review; her understanding for the reasons for Mr Horsfall’s appeal; and the action Mr Horsfall requested by taken in his internal review request noting that specifically, Mr Horsfall believes:

… A review of the FWA request against the operational facts, specifically the number of SNO’s in Team GOLF and Team SIERRA, consideration of how the SNO teams operate on a day-to-day basis, and the lack of adverse impact to any other SNO’s would result in the proposed FWA being granted…

  1. [89]
    Ms Stannard’s decision and reasons for decision commence on page three of the letter. Ms Stannard confirms that she has reviewed all information available to her, including Mr Horsfall’s FWA request, his individual family care arrangements, the type of work he performs, the impact of the requested FWA on other employees, the impact on customer service requirements, the ability to maintain compliance, operational and safety standards, the industrial relations parameters, as well as the guiding principles of fairness, diversity, equity and inclusion.[4]
  1. [90]
    I have reviewed the submissions of the parties and the matters set out in Ms Stannard’s decision under the headings ‘Operational reasons’, ‘Industrial relations reasons’ and ‘Personal reasons’. While upholding Mr Davis’s grievance decision to uphold the initial decision not to grant the FWA, Ms Stannard says:

Notwithstanding this, I remain committed to working with you to find flexible work options for you. While it will likely create operational impacts which will need to be navigated, I note that both Mr Davis and Mr Walsh have proposed that you consider a part-time working arrangement. I understand you have previously stated you do not wish to work part time, but I strongly encourage you to reconsider this proposal, even temporarily to assist you with managing your family caring responsibilities. If you wish to discuss this further, I encourage you to make contact with…

  1. [91]
    Ms Stannard also addresses Mr Horsfall’s human rights and his right to seek an external review of this decision. I am satisfied that Ms Stannard’s decision provides sufficient detail regarding her consideration and findings for Mr Horsfall to understand the decision and the basis upon which it was made.
  1. [92]
    I now move to Mr Horsfall’s reasons for appeal. Mr Horsfall’s reasons for appeal are not numbered in the appeal notice, however I have drawn the following nine grounds of appeal from what he has included in the notice.

Appeal Ground One: Effect of decision on Mr Horsfall and his family and financial disadvantage arising from decision

  1. [93]
    I understand that Mr Horsfall believes the decision is unfair because it has an adverse effect on him and his family. That a decision may have an adverse effect does not necessarily make it unfair. I understand that as a result of the decision, Mr Horsfall has had to make other arrangements for the care of his child and that he has been using his leave entitlements to facilitate his availability for caring responsibilities. Further, I understand that one of the suggested solutions is that for a period of time, Mr Horsfall works on a permanent part-time basis to ensure he is available for caring duties as required. While Mr Horsfall may not consider any of these arrangements to be ideal, it seems to me that the Ms Stannard did consider Mr Horsfall’s personal circumstances but concluded that for the reasons she explained, his request was not able to be accommodated. The resulting impact on Mr Horsfall does not serve to make the decision not fair and reasonable.

Appeal Ground Two: Ms Stannard’s decision was based on misinformation or a misinterpretation of the information provided

  1. [94]
    I understand that Mr Horsfall has a different view of the situation and a different understanding regarding the operational and industrial matters raised by Ms Stannard.  However, there is nothing before me to suggest that Ms Stannard’s decision was based on misinformation or that she has misinterpreted the situation. Ms Stannard was aware of the basis of Mr Horsfall’s grievance when she considered the matter and wrote the decision.
  1. [95]
    I am satisfied that Ms Stannard considered all material available to her and has clearly explained the reasons for the decision to Mr Horsfall in the decision of 10 March 2023.

Appeal Ground Three: There are no operational or safety impacts associated with implementing the FWA

  1. [96]
    This appeal ground is addressed as part of my consideration of the other appeal grounds.  However, I cannot accept Mr Horsfall’s submission that there are no operational impacts associated with implementing the FWA.  Mr Horsfall’s suggested roster design could not be implemented without some operational impact and this is borne out in the subsequent decisions at the local level, in the grievance and at internal review, as well as in the Respondent’s submissions.

Appeal Ground Four: There is no requirement for SNOs to work in pairs, SNOs are sometimes deployed in teams of three and SNO teams are not comprised of an even number of employees

  1. [97]
    I accept the Respondent’s submission that to meet its obligations under the WHS Act, it deploys officers in pairs. I also accept that the Respondent prefers operating teams with even numbers of SNOs to enable it to deploy officers in pairs. I understand Ms Stannard’s comment that a team of seven would limit the locations where SNOs could be deployed to mean that if a team consisted of seven SNOs, given the requirement that SNOs not be deployed on their own, the team could only operate in three locations or incidents rather than four. 
  1. [98]
    While the operation of a team of seven and the deployment of groups of three SNOs may be something that must occur in emergent circumstances, I accept that the Respondent does not find it viable that this would occur on a regular and scheduled basis. I find that it was fair and reasonable for the Respondent to determine that for safety and operational reasons, it would not approve an ongoing FWA which meant that SNOs would need to be deployed in groups of three.

Appeal Ground Five: Mr Horsfall does not seek to swap with another SNO, rather he seeks to work two shifts per week in a different team and this would not require a roster change for another SNO

  1. [99]
    Like the Respondent, it is unclear to me what is sought to be demonstrated in this ground of appeal. If Mr Horsfall is to undertake shifts on another team, it follows that the member of that team will not be required to work those shifts. In order for that team member to work the required number of shifts and hours on the roster, it seems to me that this would require them to work shifts elsewhere. There would also be the matter of someone being able to work the shifts Mr Horsfall is not available for on his own team. Alternatively, the Respondent would need to create additional shifts for Mr Horsfall in that other team and I accept that it is not viable for the Respondent to do this when it has no operational need for the additional shifts.
  1. [100]
    The Award allows for shift swaps in exceptional circumstances. It appears that the Respondent may be able to consider shift swaps which a legislatively compliant but that the particular shifts Mr Horsfall seeks to swap do not comply with the Award. While Mr Horsfall submits that on 11 August 2023, the Respondent was able to swap two of his four shift swaps in a legislatively compliant way, there is no evidence before me that this is something which is operationally available on an ongoing basis.  In any case, the focus of this appeal is on the decision of 10 March 2023 and it appears that at that time, the assessment was made that an ongoing ‘shift swap’ was not deemed to be operationally possible. 
  1. [101]
    I note Mr Horsfall’s submission that another SNO has undertaken approved shift swaps for the purposes of their custody arrangements. I accept that this may be true, but also that each application is assessed on a case-by-case basis. If another person has an approved FWA, it is clear that the arrangement is one which is operationally feasible.
  1. [102]
    The Respondent’s analysis of Mr Horsfall’s FWA request also raised complications regarding the capacity for him to receive the minimum 10-hour break required by cl 18.9 of the Award and would also create problems with the provision of a scheduled day off and his consecutive days off.
  1. [103]
    I further note that at the time, Ms Stannard also noted that Mr Horsfall’s proposed roster would leave him short of hours on the roster, thereby constituting a part-time arrangement.  That matter is discussed elsewhere in these reasons.
  1. [104]
    On that basis, I find it was fair and reasonable for Ms Stannard to decide that a swap for Mr Horsfall to complete shifts on a different team was not possible.

Appeal Ground Six: Mr Horsfall is prepared to accept that the change in his rostered hours constitutes a part-time arrangement

  1. [105]
    In her letter, Ms Stannard states that Mr Horsfall’s FWA would result in him working fewer than the minimum hours prescribed for a full-time SNO. Effectively, this would mean that he was working under a permanent part-time arrangement.  It appears that this was an option which may have been available but Ms Stannard notes that Mr Horsfall had said that he did not want to work on a part-time basis.
  1. [106]
    While this appeal ground appears to be Mr Horsfall stating that he would be willing to accept a part-time arrangement, at the time Ms Stannard wrote her decision, this was not his position. As it has transpired, the submissions Mr Horsfall has filed for the appeal make it clear that he does not want to work a part-time arrangement.
  1. [107]
    It was fair and reasonable for Ms Stannard to address the matter of the reduction of hours and to determine that such a change would not be appropriate in circumstances where Mr Horsfall did not want to accept a change to permanent part-time employment.

Appeal Ground Seven: The FWA would not result in a financial advantage to him, nor would it result in an inequitable distribution of shift penalties across the cohort

  1. [108]
    I accept that Mr Horsfall believes the FWA would not result in financial advantage to him and that he believes it would not result in an inequitable distribution of shift penalties across the cohort. This matter is just one element that is in issue between the parties. I find that even if Mr Horsfall’s position is correct, Ms Stannard’s decision addresses a range of other reasons the Respondent decided to refuse the request.

Appeal Ground Eight: The FWA request would not necessitate changes to the employment arrangements of other employees

  1. [109]
    This matter is dealt with in my consideration of Appeal Ground Five.

Appeal Ground Nine: Cl 15.1(f) of the Award has been applied selectively and cl 15.1(d) and (f) could also apply to the request

  1. [110]
    Clause 15.1(d) states that different methods of working a 38-hour week may apply to individual employees, groups or sections of employees in each location concerned. In the context of cl 15 which sets out the ordinary hours of duty for the range of public sector employees covered by the Award, I find that this clause is a recognition that in some roles or positions, the way the 38 hours is worked may differ from a spread of the 38 hours during normal business hours over a 10-day Monday to Friday work week. 
  1. [111]
    The reason cl 15.1(f) is relevant here is that it refers to requirements regarding the spread of work hours in circumstances where the employee may not be entitled to a Saturday/Sunday ‘weekend off’. Clause 15.1(f) provides a requirement that employees receive two consecutive days off. I understand that the way this is delivered to SNOs is by way of a rotating monthly team roster which ensures coverage but also delivers the two consecutive days to each employee who is in the team. Team members receive two consecutive days off per week and additionally receive a rostered day off.
  1. [112]
    It was fair and reasonable for Ms Stannard to give consideration to cl 15.1(f).  In any case, the fact that a monthly rotating roster is in place and the FWA request was being considered is an indication that the Respondent recognises cl 15.1(d) applies to the employment of SNOs.

Conclusion

  1. [113]
    For completeness I note that in his submissions, Mr Horsfall claims that the decision constitutes adverse action.  That is not a matter I will consider in this public sector appeal. There are avenues available if Mr Horsfall believes there has been adverse action taken against him.
  1. [114]
    According to s 28 of the Act, where a mutually agreeable FWA cannot be reached, the employer may refuse the request on reasonable grounds.  I have considered each of Mr Horsfall’s grounds of appeal and all the submissions and material that has been filed in this matter.  I find it was fair and reasonable for Ms Stannard’s internal review decision to find that a mutually agreeable FWA could not be reached.  I have considered the grounds upon which the FWA was refused and find that the refusal was made on reasonable grounds. 
  1. [115]
    I would further note that throughout the course of the year since the appeal notice was filed, it appears that considerable effort has gone into negotiating a mutually agreeable outcome.  While the flexible working arrangement requested by Mr Horsfall was refused in Ms Stannard’s decision of 10 March 2023, the Respondent has not shut the door on attempting to find a way to accommodate Mr Horsfall’s needs. In fact, I understand that in the period since the appeal was filed, Mr Horsfall has been offered a swap to a different team on a new roster pattern and that he did not respond to that offer.
  1. [116]
    There will be occasions where it is not possible or appropriate to approve a particular FWA. I understand that it is disappointing for an applicant when this occurs, however I note that in Mr Horsfall’s case, there are options which remain open to him to meet his caring obligations. While it is not ideal for Mr Horsfall to access leave entitlements or reduce his hours to part-time, these are options which are accessed by many working people to enable them to meet their caring responsibilities. 
  1. [117]
    For the reasons given above, I find that Ms Stannard’s decision of 10 March 2023 was fair and reasonable. The decision appealed against is confirmed.

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] [2019] QSC 170 (‘Gilmour’).

[2] Ibid [207]-[209].

[3] Ibid; Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480; Fraser v State of Queensland (Queensland Police Service) [2023] QIRC 089.

[4] Correspondence from Ms Sally Stannard, Deputy Director General, Translink to Mr Trevor Horsfall dated 10 March 2023, page 3, paragraph [1].

Close

Editorial Notes

  • Published Case Name:

    Horsfall v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Horsfall v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2023] QIRC 329

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 Nov 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Fraser v State of Queensland (Queensland Police Service) [2023] QIRC 89
2 citations
Jump To
Cite 1 - [2023] QIRC 89
Cite 2 - [2023] QIRC 89
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480
2 citations
Jump To
Cite 1 - [2022] QIRC 480
Cite 2 - [2022] QIRC 480

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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