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Marx v State of Queensland (Queensland Health)[2025] QIRC 35

Marx v State of Queensland (Queensland Health)[2025] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Marx v State of Queensland (Queensland Health) [2025] QIRC 035

PARTIES:

Marx, Megan

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/83

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

7 February 2025

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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 requested an extension to a flexible working arrangement – where the respondent supported the application in part – where the respondent offered alternative flexible working arrangements to the appellant – where appellant considers respondent's decision was unfair and unreasonable – decision fair and reasonable

LEGISLATION AND INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 28, s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 131, s 133, 134

Directive 11/20: Individual employee grievances cl 4, cl 5

Public Service Commission, Flexible work request checklist

Queensland Public Health Sector Certified Agreement (No. 11) cl 10, sch 3

CASES:

State of Queensland (Queensland Health) v Hume [2024] ICQ 3

Reasons for Decision

  1. [1]
    Ms Megan Marx (the Appellant) is employed as a Resource Officer within the Research and Learning Network team, Addiction and Mental Health Services (AMHS) at Metro South Health (MSH), Queensland Health (the Respondent). Ms Marx's role is based at Eight Mile Plains.
  2. [2]
    Ms Marx has been employed with the Respondent since 3 July 2017. In 2018, Ms Marx relocated to Beachmere after moving in with her husband who owns a property there.
  3. [3]
    Following Ms Marx's relocation her commute to work increased. To mitigate the impacts felt by a longer commute, Ms Marx requested an arrangement to work a nine-day fortnight, comprised of six days working from the office and three days from home.[1] The Respondent supported this arrangement which allowed Ms Marx to reduce her commute by 150km each fortnight.
  4. [4]
    On 1 March 2024, Ms Marx submitted a further flexible work arrangement (FWA) request, seeking an extension of the FWA arrangements she already had in place. Ms Marx requested her FWA include the following:
  • Working a 9-day fortnight to enable every second Friday off;
  • Working from home four days a fortnight;
  • Commencing work at 6:00am on the days worked in the office.
  1. [5]
    On 11 March 2024, Ms Loretta Warburton, Research and Education Manager, AMHS, MHS, determined to extend Ms Marx's arrangements to work a nine-day fortnight and work from home three days a fortnight. She approved only one 6:30am start from the office each fortnight, so long as Ms Marx finished at 4:30pm one afternoon (which could not be the same day Ms Marx would start at 6:30am).
  2. [6]
    On 2 April 2024, Ms Marx submitted a request for an internal review of the decision relating to her FWA request on the following grounds:
  • Operational requirements
  • Arbitrary constraints; and
  • Equity.
  1. [7]
    On 2 May 2024, Ms Marx was provided with the outcome of the internal review. Ms Lesley English, Executive Director, Community and Oral Health Services (COHS), MSH, found Ms Warburton's decision was fair and reasonable (the Decision). The Decision outlined that there was sufficient information to demonstrate the approval of the FWA request would have negatively impacted the delivery of services by the Research and Learning Network team.
  2. [8]
    The Decision outlined the following:

I have obtained further information from Ms Warburton to gain further insight into the concerns you have raised.

…

I have been advised that your position in the Research and Learning Network team is responsible for coordinating and producing resources for education and research within MSAMHS. In addition to assisting in the design of research and learning materials, you are also responsible for coordinating training, learning and research events, many of which occur in person. I understand that on the days you are currently supported to work from home, the support function for facilitated sessions is then shared amongst the team members that are onsite. This is to ensure that the facilitated training sessions are still set-up and supported, however, I note that this support function is not a core function of others within the team.

I believe in making her decision, Ms Warburton has considered the impracticalities of supporting additional WFH arrangements due to the further impact that would have on the working arrangements and priorities of other team members in order to ensure the service is adequately supported …

…

Further information received from Ms Warburton indicates that the Research and Learning Network team are transitioning all training and educations from online to in-person sessions. As such, the team are required to be more present in the office to accommodate and support the face-to-face facilitated sessions. Noting the specific support function associated with your role in the Research and Learning Network team, I can appreciate the importance of ensuring that this is available for service delivery.

…

Whilst the EB11 explicitly defines the spread of hours for day workers as time between 6:00am to 6:00pm, it further defines 'variable periods' in which an employee may vary their commencing and ceasing times of ordinary work subject to the requirements of a particular position and with the agreement of the supervisor. Clause 3.1.6 of EB11 further outlines that where an agreement cannot be reached, supervisors may direct starting or ceasing times of employees within the spread of hours based on operational requirements and having regard to work/life balance principles.

In consultation with Ms Warburton, it was identified that the Research and Learning Network team support functions that are not operational at 6:00am. I understand that on 21 February 2024, prior to the submission of the FWA application, Ms Warburton further explained that where consideration was being given to commencing earlier, similar consideration needed to be given to the service needs for the afternoon. Ms Warburton expressed concerns for the service provision of both mornings and afternoons and clarified that the team did not need to be available until 6:00pm however still needed to be available in the afternoons.

  1. [9]
    On 13 May 2024, Ms Marx filed an appeal of the Decision. 

Jurisdiction

Decisions against which appeals may be made

  1. [10]
    Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable is appealable under s 131(1)(d) of the PS Act. The Appellant indicated in the Appeal Notice that she is "appealing a fair treatment decision".
  2. [11]
    Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. The Appellant meets that requirement.
  3. [12]
    Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.

Timeframe for appeal

  1. [13]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes.
  2. [14]
    The Decision was given to Ms Marx on 2 May 2024 and the Appeal Notice was filed on 13 May 2024. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

What decisions can the Commission make?

  1. [15]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Submissions

  1. [16]
    In accordance with the Directions Order issued on 15 May 2024, the parties filed written submissions.
  2. [17]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

The Request and Decision

  1. [18]
    In her FWA request, Ms Marx submitted the following reasons for submitting the request:
  • Reducing her commute to work.
  • Allowing the team to collect quantifiable data on additional flexible options within the EBA.
  • Ms Marx works more productively in the morning and this arrangement would allow her to spend her "hour of [her] most productive work", working.[2] Ms Marx leaves her residence at Beachmere at 4:30am to avoid traffic and arrives at work before 6:00am each morning. She then waits in her car for an hour to start at 7:00am.
  • Economic and emotional benefits which were observed through Covid-19.
  1. [19]
    Ms Marx provided the following example of her proposed days and times of work:

M1

T1

W1

T1

F1

O – 6.00 – 3.00

WFH 8.00 – 5.00

O – 6.00 – 3.30

WFH 8.00 – 5.00

WFH 8.00 – 5.00

8.3

8.3

9

8.3

8.3

M2

T2

W2

T2

F2

O – 6.00 – 3.00

WFH 8.00 – 5.00

O – 6.00 – 3.30

WFH 8.00 – 5.00

OFF

8.3

8.3

9

8.3

77.30

  1. [20]
    In her review of Ms Warburton's decision, the decision-maker determined that Ms Warburton adequately considered the requirements of Ms Marx's role and the subsequent impact the FWA application would have on the business requirements of the position. The decision-maker acknowledged that "Ms Warburton could have communicated her decision in greater detail", however found sufficient information that demonstrates the FWA would negatively impact the team.[3]
  2. [21]
    The decision-maker's reasoning is summarised as follows:
  • Ms Marx's position within the Research and Learning Network team is responsible for coordinating, training, learning, and research events, many of which occur in person.
  • There were impracticalities around additional working from home arrangements due to the impact on the working arrangements and priorities of the other team members.
  • The team is transitioning from all online training and education to in-person sessions, which requires the team to be more present in the office.
  • The team's support functions are not operational at 6:00am. Ms Warburton expressed concerns for the service provision during the afternoon as a consequence of Ms Marx's proposed early start time.

Relevant Provisions

  1. [22]
    Section 131 of the PS Act states:

131Decisions against which appeals may be made

(1)An appeal may be made against the following decisions—

…

(d)a fair treatment decision;

…

  1. [23]
    Section 133 of the PS Act provides:

133Who may appeal

The following persons may appeal against the following decisions—

…

(d)for a fair treatment decision—a public sector employee aggrieved by the decision;

  1. [24]
    Clause 4 of Directive 11/20: Individual Employee Grievances (the Directive) provides (emphasis added):

4.1The Queensland Government is committed to creating positive and healthy workplace cultures, where employees, supervisors and managers:

(a)make decisions and take actions that are fair and transparent, and take responsibility for the consequences of their decisions and actions

…

(d)listen to understand and show empathy for others

(e)work together to resolve issues early and as informally as possible

4.4 Under the HR Act, decision-makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

  1. [25]
    Clause 5 of the Directive provides (emphasis added):

5. Matters that can be the subject of an individual employee grievance

5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that:

(a) an administrative decision, which they are aggrieved by, is unfair and unreasonable

  1. [26]
    Schedule 3, cl 3.1 of the Queensland Public Health Sector Certified Agreement (No. 11) 2022 (EB11) provides:

3.1 Working Arrangements

3.1.1Employees will at all times obey directions given by their Supervisor regarding hours of work during the spread of hours.

3.1.2All staff will give first priority to the maintenance of acceptable workflows. There will be cooperation between employees and their Supervisors in planning employees' working times; ensuring resources are available to service the needs of the public, other departments and the organisation, and to enable the continuance of effective communication and services.

3.1.3An employee may not accumulate credit for time during variable periods unless work is available for the employee to perform during such period.

3.1.4As far as practicable, disputes between employees regarding employees' working times will be settled by mutual co-operation between the employees concerned.

3.1.5Employees are responsible for ensuring that time worked in excess of the normal daily hours is necessary for the efficient performance of the work unit and that accrued hours are taken at a time convenient to the work unit.

3.1.6It will be the responsibility of each Supervisor that in the implementation of this Arrangement the needs of the health facility and public are met and that proper supervision is available at all times.

  1. [27]
    Clause 10.3 of EB11 provides:

10.3 Flexible Working Arrangements

10.3.1The Flexible Working Arrangements Guideline has been developed for the purpose of achieving work life balance. Queensland Health is committed to implementing all strategies and performance indicators as agreed.

10.3.2In accordance with the IR Act an employee including temporary and casual employees may ask the employer for a change in the way the employee works, including the employee's ordinary hours of work. An example could include the request to work a nine-day fortnight.

10.3.3Further, in accordance with the IR Act the request must:

(a)be in writing;

(b)state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and

(c)state the reasons for the change.

10.3.4The employer may decide to grant the request or grant the request in part or subject to conditions; or refuse the request. The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds.

10.3.5The employer must give the employee written notice about its decision within 21 days after receiving the request. 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 the reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal.

10.3.6The parties acknowledge that increased flexibility and improvements in working arrangements can further the aims of efficiency, effectiveness and equity.

Consideration

Appeal principles

  1. [28]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  2. [29]
    The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process.
  3. [30]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  In reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  4. [31]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

Fair and reasonable

  1. [32]
    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."
  2. [33]
    In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[4] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
  3. [34]
    In State of Queensland (Queensland Health) v Hume,[5] his Honour explained (citations omitted):

[41]Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.

[42]First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.

[43]The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.

[44]Similar arguments made to the Commission have been rejected by the Commission.

[45]Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.

…

[48]Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:

• that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and

• that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.

[49]The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.

[50]Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.

[51]By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.

…

[53]The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

  1. [35]
    The basis of Ms Marx's request was to improve her work-life balance, mental health and physical health which is compromised by her commute to work from Beachmere to Eight Mile Plains.[6]
  2. [36]
    The Public Service Commission's Flexible work request checklist (the Checklist) requires the employer to consider the "individual employee's circumstances".[7] They also must consider the impact of the request on the business, including if the request has any "effect on the implementation of operational/work plans".[8] If so, the employer is required to consider how the "request will affect staffing requirements" and the impact on "client service requirements".[9]
  3. [37]
    In reaching a decision, the employer is to assess each request on a "case-by-case basis", which involves considering the benefits and challenges for the employee, workgroup and organisation.[10] If the original request is not appropriate, the employer may also negotiate with the employee alternative arrangements that will suit all parties involved.[11]
  4. [38]
    Ms Marx submitted that the procedures in the Checklist were not adhered to, particularly her matter of equity which was discussed with Ms Warburton.[12]
  5. [39]
    I have found that the decision-maker fairly and reasonably concluded that Ms Warburton's decision was made in accordance with the Checklist and relevant procedures.  My reasons follow.

Operational requirements and arbitrary constraints

  1. [40]
    Ms Marx submitted that when her team returned to the office, two 'arbitrary constraints' were introduced – a 70/30 split between home and the office and the earliest start time being 7am.[13] During discussions with co-workers, it was revealed to Ms Marx that other teams are mandated a 60/40 split, which "can't be confirmed as HR will not provide even general information regarding any work practices around flexibility for 'privacy and confidentiality reasons'".[14]
  2. [41]
    The FWA arrangements Ms Marx is making comparisons with are those among 'other teams'. The operational requirements for each team within the service will be different, as each team has different responsibilities and resourcing. I will consider the decision-maker's reasoning for Ms Marx's request in relation to working from home and commencing at 6am each day she is in the office, within the context of her role in the Research and Learning Network team.

Working from home

  1. [42]
    The decision-maker adequately addressed the operational requirements of the Research and Learning Network team, explaining why Ms Marx's attendance in person was required at least six days a fortnight. That is, Ms Marx's role is responsible for coordinating training, learning and research events, many of which occur in person. It was also noted by the decision-maker, on the days Ms Marx is currently supported to work from home, the support function for facilitated sessions has to be shared amongst the team members that are onsite.
  2. [43]
    Ms Marx submitted that:

We are not a time critical service provider. We don't have a public face. Our services, and particularly my research administrative support role, does not require the daily face-to-face scheduling of other roles such as a medical receptionist in ER, or an ambulance driver. My role during Covid continued as usual entirely from home, and in fact, we created new resources and practices in isolation that have continued after returning to the office. Leadership has denied the earlier start not because of Operational Requirements but rather because of leadership preferences. There is no evidence the service will experience reduced deliverability.

During peak times, for example the Symposium, I am happy to come in each day because my job description does require that 'face-to-face' assistance for presenters, recording and organising. I come in every Wednesday for the Lunch-and-Learn sessions for the same reason. It is an Operational Requirement as technical issues are often easier to solve face-to-face than over the internet. The proposed changes would have made me available face-to-face for over half of the scheduled work week.

Loretta is happy to maintain a request based work-from-home arrangement, particularly when weather conditions create hazardous driving, or with medical appointments, but will not embrace flexibility where it is mandated. Permission is at her behest.[15]

  1. [44]
    I am not of the view that it was simply a matter of "leadership preferences" to not support Ms Marx's request as she contends. A part of Ms Marx's role is to coordinate training, learning and research events. Many of these events occur in person. The impracticality of extending a further work from home day for Ms Marx was that the priorities of other team members would be impacted. This information was before the decision-maker when conducting the internal review after she requested further clarification into Ms Marx's role. The decision-maker was advised that (emphasis added):

Yesterday, Sarah and I met with Ms Loretta Warburton, Manager, Research and Learning Network, Metro South Addiction and Mental Health Services (MSAMHS) in relation to the flexible work arrangements (FWA) request submitted by Ms Megan Marx, a permanent fulltime Resource Officer (AO4), Research and Learning Network, MSAMHS. During our discussion, Ms Warburton provided further insight and context into the operational requirements of the team and their service delivery.

Ms Warburton noted that Ms Marx currently works from home (WFH) 3 days a fortnight in addition to working extended hours to access an accrued day off, also once a fortnight. In her FWA request, Ms Marx documented commencing at 6am which Ms Warburton advised was not suitable as the Research and Learning Network team support functions that are not operational at 6am. As an alternative, Ms Warburton provided Ms Marx with 2 alternative options including either a 6:30am start or 10am start (once a fortnight) as this allowed the Research and Learning Network to support the needs of the organisation.

Ms Warburton advised that Ms Marx conducts face-to-face training in addition to providing training support and training development for the Nurse Grade 7s (NRG7). On days that Ms Marx works from home, the support function she is responsible for is then left to the NRG7s including room set-up and ensuring catering is set up. Interestingly, Ms Warburton advised that Ms Marx has not been swapping her WFH days to support significant education days which was a point Ms Marx referred to in her review request that she would do if her FWA was accepted. Further to this, Ms Warburton confirmed that Ms Marx is the only AO4 in the team.[16]

  1. [45]
    Ms Marx acknowledged that there are aspects of her role involving face-to-face interaction to assist "presenters, recording and organising" during in-person education events. It is not operationally feasible to support Ms Marx having an additional work from home day each fortnight when these duties must be offboarded to other members of the team. In fact, it is inappropriate that in Ms Marx's absence, the Nurse Grade 7s are left to undertake duties she is responsible for including room set-up and catering. Despite Ms Marx's undertaking to come into the office "during peak times", she has not been doing so, placing a burden on her colleagues. It is completely reasonable for the decision-maker to consider this evidence in determining that it is not operationally feasible to implement yet another work from home day for Ms Marx.
  2. [46]
    With respect to Ms Marx's submission in relation to her role being undertaken completely at home during the spread of Covid-19, the decision-maker appropriately outlined that the Learning and Research Network team is transitioning into more face-to-face training sessions. Despite training being undertaken online in the past, this will no longer be the norm and as such, the organisation's workflow would be negatively impacted by supporting Ms Marx having and an additional work from home day.

Variation of hours

  1. [47]
    Ms Marx submitted that the conditions in the Hospital and Health Services General Employees (Queensland Health) Award – State 2015 (the Award), EB11 and the Checklist support flexibility. In Ms Marx's view, the imposition of a 7am start time is 'arbitrarily mandated' by Ms Warburton as it is her leadership preference. Both Ms Warburton and "Angela" (Acting Team Leader) have stated to Ms Marx that if she is approved for a 6am start time, others will request the same, which is the reason her request cannot be accommodated.
  2. [48]
    EB11 defines the 'spread of hours' for day workers as the time between 6:00am to 6:00pm. EB11 further defines 'variable periods' which are:

… the time spans within the spread of hours, when subject to the requirements of the particular positions, the agreement of the supervisor concerned and the various provisions of this arrangement, an employee may vary their commencing and ceasing times for ordinary work.

  1. [49]
    In accordance with sch 3, cl 3.1.2 of EB11, there must be cooperation between employees and supervisors when "planning employees working times; ensuring resources are available to service the needs of the public, other departments and the organisation, and to enable the continuance of effective communication and services".
  2. [50]
    The decision-maker identified that the Research and Learning Network team support functions are not operational at 6:00am. Ms Warburton explained to the decision-maker that if consideration was given to commencing earlier, similar consideration needed to be given to the service needs in the afternoon.
  3. [51]
    It was entirely reasonable for Ms Warburton to consider concerns for the service provision of both mornings and afternoons. If Ms Marx were to commence work at 6:00am in accordance with her proposed hours produced at [19], Ms Marx would be finishing work around 3:00pm to 3:30pm on all of her in-office days. That leaves a significant portion of the afternoon where Ms Marx would not be present. Working times must be set that support the continuance of effective communication and services. This has been fairly considered by Ms Warburton and the decision-maker.

Insufficient information for review

  1. [52]
    In arguing that the decision was unfair and unreasonable, Ms Marx contended that Ms Warburton did not adequately explain why her application was not approved. She also submitted indicating the application was 'partially approved' was disingenuous and provided a 'distraction' from any reason needing to be provided.[17] The decision-maker acknowledged that Ms Warburton's decision did not adequately cite what specific workplace needs were considered, but that did not mean they were not considered.
  2. [53]
    The Respondent submitted that the decision-maker recognised the lack of sufficient information provided for review and sought the necessary additional details regarding Ms Marx's role.[18] By no means did this render Ms Warburton's decision deficient, but rather, demonstrated the decision-maker in an independent capacity, sought to understand the operating context in which the decision was made.
  3. [54]
    Included under the heading "Reason for decision (if partial approval or refusal)" contained within Ms Marx's Flexible working arrangements – Application and agreement form were the following reasons:

Some of the flexible work arrangements have been approved – these are both existing and partial approval for a new request.

Existing flexible arrangement – 3 x days per fortnight WFH – approved to continue (New flexible arrangement – 4 x days per fortnight WFH – not approved)

The amount of hours indicated in your request is 77 ½ hours which is over the standard fortnightly hours. This needs to be amended accordingly.

Provision of flexibility of an early start at the requested time of 6am and the amount of times per fortnight requested (x4) will align with service requirements and does not indicate distribution across mornings and afternoons. A 6am start for any Research & Leaning network staff does not reflect the hours of our staff or the service. Partial approval will be given for 1x early start per fortnight at 6:30am at the earliest – as this time once a fortnight will provide flexibility as well as be closer to the needs of the service – and will only be approved if there is also one afternoon finish at least 16:30 (not on the same day & not exceeding 9 hours); again this will only be required once in the fortnight. This is suggested to enable flexibility that meets the service needs.

  1. [55]
    While Ms Warburton ought to have provided more detail surrounding why Ms Marx's request to work from home an additional day per fortnight was declined, that does not render the Decision unfair and unreasonable.
  2. [56]
    Ms Warburton outlined reasons why Ms Marx could not commence at 6am each day. That being, it would create an uneven distribution across mornings and afternoons, and a 6am start did not reflect the needs of the service. I accept that Ms Warburton should have outlined what workplace needs were considered in respect of Ms Marx's request for an additional work from home day.
  3. [57]
    The decision-maker appropriately sought additional information surrounding why Ms Marx's requests could not be accommodated when determining that Ms Warburton's decision was fair and reasonable. It was also sensibly conceded by the decision-maker, that Ms Warburton's decision could have contained more information about what workplace needs were considered. It does not mean though that Ms Warburton did not consider them – and they certainly were considered by the decision-maker in her internal review.

Lack of transparency

  1. [58]
    Ms Marx submitted:

I have included an email from my internal review application, where an administrative error revealed the name of a previous applicant. (Copy/paste had been used, presumably for efficiency). When I brought this to the attention of administration – in the hope that the error would not be repeated – the reply created the impression that it would be ignored, and that I was to be party to the suppression of the error. I am not comfortable with this. It's dishonest – not privacy or confidentiality.

I am now left with a moral dilemma. I know the person whose data was breached, but I was reminded of the expectation of confidentiality by HR. I was not told that she would be informed of the breach. She should be told. I felt like it was considered minor and was firmly swept under the carpet.  I have been made to feel part of this suppression. That's wrong.

I provide this example as it is indicative of the lack of transparency and implied threats to job security from leadership which undermine the confidence of employees when communicating on employment matters such as flexibility. It is not an isolated example. Rather than a progressive cooperative approach, it is a return to an adversarial and regressive 'employer/employee' power dynamic.[19]

  1. [59]
    I place no weight on this example to demonstrate that there has been a lack of transparency with respect to Ms Marx's FWA request. The determination for this appeal is whether the Decision in relation to Ms Marx's FWA was unfair and unreasonable. Some administrative error made where the name of another employee was revealed to Ms Marx, and Ms Marx was not given the assurances she required that the affected employee would be told, has no bearing on this appeal.

Selective information provided

  1. [60]
    Ms Marx is of the view that selective information was provided to the decision-maker about her FWA. I do not agree.
  2. [61]
    The decision-maker actively sought additional information to get a clearer insight into Ms Marx's role within the organisation to make an informed assessment of whether Ms Warburton's decision was reasonable. The decision-maker acquired and considered the official role description for Ms Marx's role, to understand the responsibilities of a Resource Officer. Such requests are completely reasonable in the decision-makers role acting in an independent capacity.

One size fits all approach

  1. [62]
    There is not a "one size fits all" approach to flexible work requests. The FWAs of other colleagues in other teams which Ms Marx draws my attention to are irrelevant. Each employee has unique circumstances and arrangements in place to meet their individual needs.
  2. [63]
    It is not extremely unusual for an employee to travel over an hour each way to and from work.  That in itself, does not warrant further special consideration than what Ms Marx has already received.
  3. [64]
    It appears that the Respondent has adequately considered Ms Marx's circumstances. The "mandated" 70/30 split that Ms Marx expressed to have been imposed upon her team, has not been applied to her following the Respondent's consideration of her FWA. Ms Marx is only required to attend the office six days a fortnight. Further, after consideration of Ms Marx's circumstances, Ms Warburton granted Ms Marx the opportunity to commence work at 6:30am one day a fortnight (so long as she completed one 4:30pm finish not on the same day within that fortnight). I think that is an entirely reasonable and generous approach.
  4. [65]
    Additionally, there have been ample suggestions made by the Respondent of suitable alternatives to suit both parties. The Decision does not prevent Ms Marx from making ad-hoc work from home requests. Ms Warburton told Ms Marx that consideration could be given to working from home every third or fourth fortnight depending on work demands.[20] The team could also operationally support a temporary arrangement for Ms Marx to work part-time. 

Conclusion

  1. [66]
    For the reasons outlined above, I find that the Decision was fair and reasonable.
  2. [67]
    The Decision adequately considered Ms Marx's circumstances along with the impact on other team members and the requirements of the Research and Learning team to support MSH staff and consumers.
  3. [68]
    In my view, the Respondent has been extremely accommodating to Ms Marx and made appropriate and suitable alternative suggestions to support both Ms Marx and the service.
  4. [69]
    I order accordingly.

Orders

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

Footnotes

[1] Respondent's submissions filed 19 June 2024, Attachment 2, 1.

[2] Respondent's submissions filed 19 June 2024, Attachment 2.

[3] Ibid Attachment 6, 2.

[4] [2024] ICQ 3. 

[5] Ibid.

[6] Appellant's submissions filed 10 June 2024, 1.

[7] Public Service Commission, Flexible work request checklist, 2.

[8] Ibid 3.

[9] Ibid.

[10] Ibid 4.

[11] Ibid.

[12] Appellant's submissions filed 10 June 2024, 1.

[13] Ibid.

[14] Ibid.

[15] Ibid 2-3.

[16] Respondent's submissions filed 19 June 2024, Attachment 8a.

[17] Appellant's submissions filed 10 June 2024, 1-2.

[18] Respondent's submissions filed 19 June 2024 [18].

[19] Appellant's submissions filed 10 June 2024, 4.

[20] Respondent's submissions filed 19 June 2024, [27].

Close

Editorial Notes

  • Published Case Name:

    Marx v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Marx v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 35

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    07 Feb 2025

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
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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