Fair Work Act 2009
s.739—Dispute resolution

Marina Zhang
v
Parks Victoria
(C2021/8533)

Alleged dispute about any matters arising under the enterprise agreement and the NES [s186(6)]

[1] Ms Marina Zhang commenced employment with Parks Victoria on 11 January 2021 in the position of Financial Transaction Services Officer on a full-time basis working 76 hours per fortnight. Parks Victoria is a statutory authority established by s 5 of the Parks Victoria Act 2018 (Vic). From the commencement of her employment, Ms Zhang was required by contract to perform her duties at 65 Church Street Morwell, Victoria, a site operated by Parks Victoria. Ms Zhang is in dispute with Parks Victoria about a flexible working arrangement request and the refusal by Parks Victoria on 7 January 2022 to accede to her request for such an arrangement.

[2] On 15 December 2021, Ms Zhang made an application under s 739 of the Fair Work Act 2019 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term of the Parks Victoria Enterprise Agreement 2016 – 2020 (2016 Agreement). That application was listed for a conference before me on 25 January 2022. By that time, the 2016 Agreement had ceased to operate because on 16 December 2021 an agreement – the Parks Victoria Enterprise Agreement 2021 (2021 Agreement) replacing the 2016 Agreement – was approved by the Commission and commenced operation seven days later on 23 December 2021. During the conference I raised this issue with the parties and in order to deal with the apparent substance of the underlying dispute, I allowed an amendment to the application so that it became an application for the Commission to deal with the dispute in accordance with the dispute settlement term of the 2021 Agreement.¹

[3] The relevant background facts are not seriously in dispute.

[4] By letter dated 23 December 2020, Ms Zhang was offered employment with Parks Victoria on a full-time ongoing basis in the position of Financial Transaction Services Officer, a position which was classified as a grade 3 position under the classification structure of the then operative 2016 Agreement.² Ms Zhang accepted the offer and commenced employment in the role on 11 January 2021. Ms Zhang’s physical work location was at 65 Church Street Morwell at which Parks Victoria operated an office.³ The reference in the offer of employment which Ms Zhang accepted, to “Location Morwell” is plainly to be read as a reference to the office of Parks Victoria located in Morwell at 65 Church Street.

[5] Ms Zhang was part of a small team responsible for processing and managing the Accounts Payable and Accounts Receivable functions for Parks Victoria. Some of the key tasks performed by Ms Zhang included the following:

•  Processing payments to suppliers via EFT or cheque;

•  Updating supplier details;

•  Processing prompt payments;

•  Reimbursement of petty cash cash/float replenishment;

•  Creating/updating customer details;

•  Processing invoices;

•  Providing relevant financial records for audits and other management matters. This includes electronic or printed formats of financial transaction records stored in Morwell office or in Parks Victoria’s secondary storage which can be arranged to be delivered to the Morwell office.⁴

[6] Parks Victoria’s Financial Transaction Services team was relocated from the Melbourne CBD to Morwell in or about January 2021 and it was at that time that Ms Zhang joined the team. Although the place of work was as stated earlier, in response to the COVID-19 pandemic Parks Victoria employees were encouraged to work remotely or from home as much as possible.⁵ Relevantly Ms Zhang was encouraged and permitted to perform her duties at home for one or two days per week and to attend the office on three or four days per week.⁶ These were temporary measures.⁷ Subsequent lockdowns imposed by the Chief Health Officer (CHO) for Victoria meant that working from home arrangements became the predominant mode of working and as a consequence, the Financial Transaction Services team had to reduce its service levels for a period because of its limited access to the office.⁸

[7] On or about 23 September 2021, Parks Victoria discovered that Ms Zhang had commenced working from home on a full-time basis without its authorisation.⁹ The working arrangement put into place by Parks Victoria, so far as it concerned members of the Financial Transaction Services team, was that an office roster was prepared by the team leader designed to ensure that tasks that are to be performed by various team members would be undertaken and completed in the most efficient manner, and according to the roster most team members including Ms Zhang were required to work between three and four days from the office and between one and two days from home per week.¹⁰

[8] On or about 7 October 2021 the Acting CHO issued a direction – COVID-19 Mandatory Vaccination (Workers) Direction – under the Public Health and Wellbeing Act 2008 (Vic). This direction applied to Parks Victoria and set out the various dates after which a worker might be scheduled to work outside the worker’s ordinary place of residence and an obligation that in relation to those workers, employers were required to collect vaccination information about their workers by reference to the specified dates by which first and second vaccination doses should be received.

[9] The direction prohibited an employer of a worker, on or after the relevant date, from permitting a worker who is unvaccinated to perform work for that employer outside the worker’s ordinary place of residence. At that time, under the direction an unvaccinated worker was a person who had not received a dose of the COVID-19 vaccine and was not an exempt person. CHO directions to substantially the same effect and applicable to Parks Victoria were subsequently made as each operative direction ended.

[10] On or about 29 October 2021 Parks Victoria advised its employees including Ms Zhang about the need to be fully vaccinated by 26 November 2021 to be able to perform work outside the home and to continue working from the office.¹¹ Further emails about this were sent to Parks Victoria employees on 4 and 19 November 2021.¹²

[11] In these emails, employees were also advised that consideration was being given by Parks Victoria to offering a hybrid working model which consisted of approximately 60% of working hours to be performed in the office and the remainder from home.¹³

[12] On or about 22 November 2021 Ms Zhang made an application to Parks Victoria that she be permitted to work from home five days per week.¹⁴ In the application which is contained in a form titled “Work from home more than two days (40%) request form”, Ms Zhang set out her reasons for the request as follows:

I’d like to apply working from home for all five days of the week, starting from 11 Jan 2022, pursuant to Section 65 (1) and (1A) (a) of the Fair Work Act 2019 (Act). I can confirm that, from 11 Jan 20211, (sic) I will be completing my first 12-month continuous employment as a full-time employee of Parks Victoria. I’m making this request to help me to look after my 3yo and 8yo daughters.¹⁵

[13] By email exchange between Parks Victoria and Ms Zhang between 13 and 15 December 2021, Ms Zhang is advised that she is not eligible to make a request under s 65 of the Act because she had not completed 12 months service.¹⁶

[14] On 7 January 2022 Parks Victoria wrote to Ms Zhang declining her request to work remotely or from home on a full-time basis. The reasons for declining the request were as follows:

As you are aware, your role involves responsibilities that require a physical presence including visiting Australia Post office to collect invoices and other correspondences, processing, and printing Cheque payments on a weekly basis, posting Cheques to the suppliers via Australia Post. It is important to note that for some suppliers, a Cheque payment is the only acceptable payment method and Parks Victoria's cheque printing must be processed on-site.

As present, there are only two team members (including yourself) within the Financial Transactional Services team who perform these duties. If you were to work full time from home, these duties would need to be fully redistributed to the other team member on a weekly basis so that suppliers are paid in a timely manner. This creates an unreasonably burden on the other team member and would result in a significant loss of productivity gained from your role.

Over the past several months, the Team Leader has had to step in to help with the cheque printing and mailing which means she is taken away from Team Leader duties which is not sustainable in the long term. With the high volume of the financial transactions required to be processed within the payment timeframe that meets the Victorian Government's Fair Payment Policy, it is not feasible to have one team member in the Financial Transactional Services team working full time from home on an ongoing basis without significantly impacting on other team members' workload, leave arrangements and customer service to Parks Victoria's suppliers and customers.

Further to the above, an onsite presence allows for other components of the role to be achieved at a higher level, for example customer service and on-the-job training. Being relatively new to the role, some face-to-face interactions with the team would be highly beneficial in ensuring quality outcomes.

We are happy to provide some flexibility with working from home, however, due to the aforementioned reasons this cannot be on a full time, ongoing basis. We are working on developing a hybrid way of working (part time from home and part time office based) for the finance team in order to meet the requirements of the team and the roles within the team. You will be provided with adequate notice of this hybrid model prior to it comes into effect.¹⁷

[15] At the time I heard this application, Ms Zhang was not vaccinated for COVID-19 and did not propose to become vaccinated.¹⁸ Her eight-year-old daughter was being home schooled because Ms Zhang has an objection to mask mandates for school students of a particular age, which applied to her daughter.¹⁹ Ms Zhang shares the responsibility for providing home schooling to her daughter with her husband in that she takes over the home schooling supervision when her husband has to leave home for work purposes. Her husband has the main responsibility for the care and home schooling of their two daughters, when Ms Zhang is working. 20 He is self-employed teaching Mandarin and selling products online.²¹

[16] The application for flexible working arrangements, which involved a request that Ms Zhang be permitted to work from home for five days per week, was made in circumstances where she was not primarily responsible for the home schooling or care of her children, but she needed the flexibility to enable her to be at home for the occasions, at short notice, when her husband was required to leave the home for work or other purposes.²²

[17] I will deal firstly with so much of the dispute as concerns the operation of s 65 of the Act.

[18] That section permits an employee to request the employer for a change in the working arrangements related to, relevantly, the circumstance that the employee is a parent, or has responsibility for the care, of a child who is of school age or younger. It is uncontroversial that Ms Zhang is an employee who is a parent of a child who is of school age or younger. However s 65(2) limits the circumstances in which an employee is entitled to make a request. Relevantly the employee is not entitled to make the request unless the employee has completed at least 12 months of continuous service with the employer immediately before making the request.

[19] As I have noted above it is uncontroversial that Ms Zhang commenced her employment with Parks Victoria on 11 January 2021 and that she made a request for flexible working arrangements on 22 November 2021. At that point she had completed a little over 10 months of continuous service. By the time the request was declined she was still to have completed the requisite period of service. Thus at the time of making her request she was not entitled to do so. Ms Zhang gave evidence to the effect that she nominated 11 January 2022 as the commencement date for her flexible work arrangements because she would have completed the qualifying period of employment by that date.²³ This misses the point. The relevant date when an entitlement to make a request arises is not the date on which the proposed flexible working arrangements would commence, but rather, as s 65(2) makes clear, it is the date immediately before making the request. In the instant case that means that Ms Zhang must have completed at least 12 months of continuous service immediately before 22 November 2021. She plainly had not. Ms Zhang was invited in email correspondence dated 15 December 2021 to submit an application for flexible working arrangements after completing the 12-month period of continuous employment.²⁴ She has not done so.

[20] For these reasons this aspect of Ms Zhang’s application must fail.

[21] I turn next to the terms of the 2021 Agreement. Clause 60 of the 2021 Agreement contains a provision dealing with the right to request flexible working arrangements as follows:

60. Right to Request Flexible Working Arrangements

60.1. An eligible Employee may request a change in working arrangements relating to the following circumstances:

(a) The employee is the parent of or has responsibility for, the care of a child who is of school age or younger; or

(b) the Employee is a carer (within the meaning of the Carer Recognition Act 2010); or

(c) the Employee has a disability; or

(d) the Employee is 55 or older; or

(e) the Employee is experiencing violence from a member of the Employee’s family; or

(f) the Employee is providing personal care, support and assistance to a member of their immediate family or member of their household because they are experiencing family or domestic violence.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

60.2. This clause applies to full-time or part-time employees who have successfully completed probation, or, have at least 12 months service whichever occurs first.

60.3. Such request must be made by the employee in writing and responded to by Parks Victoria within 14 business days

60.4. Parks Victoria may refuse the request on reasonable business grounds; in accordance with the provisions of s.65 of the Fair Work Act 2009, however, approval will not be unreasonably withheld. If the request is refused, Parks Victoria will provide the reasons for refusal in writing to the employee

[22] A problem immediately arises for Ms Zhang in respect of the application of this provision to her circumstances. Clause 60 did not operate or apply to her employment at the time that the request was made on 22 November 2021. As noted earlier the 2021 Agreement commenced operation on 23 December 2021.

[23] Clause 60 of the 2016 Agreement contained a flexible working arrangements provision, which was in materially different terms to the current provision. The 2016 Agreement ceased operating on 23 December 2021 when the 2021 Agreement commenced operation. Ms Zhang’s application initially sought to engage with the 2016 Agreement. For the reasons explained in Simplot Australia Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union²⁵ though the application was commenced whilst the 2016 Agreement was in an operation, the Commission does not have power to resolve the dispute once that agreement ceased to operate, particularly as is the case here, before the Commission had any opportunity to exercise any powers in relation to the dispute. The Commission’s authority to determine a dispute under an enterprise agreement is determined by the Act and the terms of the relevant agreement. The 2016 Agreement ceased to provide any authority for the Commission to deal with the dispute on 23 December 2021.

[24] As the only request made in writing by Ms Zhang is that contained in her correspondence of 22 November 2021, that request was not one which, at that time, engaged with clause 60 of the 2021 Agreement because it was not operative at the time. No right under the 2021 Agreement which was operative at the time was being exercised. However Parks Victoria declined the request on 7 January 2022, and at that time the 2021 Agreement was in operation. I have considered whether it is open to me to conclude that the request made on 22 November 2021 was a continuing request such that it was still operative when the 2021 Agreement commenced operation on 23 December 2021. Plainly that is a construction of the facts which is available, but it does not assist in bringing the dispute within clause 60 of the 2021 Agreement. This is because even if the request is a continuing request, it was one confined to the purported exercise of rights under s 65 of the Act, the exercise of which for the reasons given there was no entitlement. There is thus no request which engaged with clause 60 of the 2021 Agreement, self-evidently because the 2021 Agreement was not then in operation. The dispute about the granting of the request made on 22 November 2021 was not one which arose under the 2021 Agreement.

[25] Clause 10 of the 2021 Agreement provides a dispute resolution procedure for dealing with a dispute or grievance about a matter pertaining to the employment relationship, arising under this Agreement or the National Employment Standards. For the reasons explained the relevant dispute is not one arising under this Agreement or the National Employment Standards.

[26] The only basis on which the Commission can resolve the dispute is to determine that Ms Zhang’s dispute or grievance is about a matter that pertains to the employment relationship. It seems to me unequivocally to be the case that the dispute is about where work is to be performed which plainly pertains to the employment relationship between Ms Zhang and Parks Victoria.

[27] Under the employment relationship between Ms Zhang and Parks Victoria, Ms Zhang did not have any right (outside of the rights conferred by the 2021 Agreement or the NES) to the flexible working arrangements or to work from home on a full-time basis. Ms Zhang’s claim is thus properly concerned with the creation of a right which does not exist. If the NES applied, or clause 60 of the 2021 Agreement applied to the request the relevant enquiry would be whether the employer’s refusal was on reasonable business grounds. In the circumstances where there was not at the relevant time any right to make a request for flexible working arrangements under the NES or clause 60 of the 2021 Agreement, the employer’s refusal of such a request is not confined to considerations of whether the refusal was made on reasonable business grounds.

[28] By her application Ms Zhang seeks, relevantly, relief as follows:

To work from home 5 days a week, taking into account my individual needs and the requirements of my specific role.

[29] I am not persuaded that any relief should be granted for the reasons which follow.

[30] First, Ms Zhang is required by Parks Victoria to carry out her duties at its office located in Morwell. As Parks Victoria informed Ms Zhang on 7 January 2022, it was happy to provide some flexibility with working from home however it would not do so on a full-time ongoing basis.²⁶

[31] Ms Zhang contends that the whole or at least the preponderance of the duties that formed part of her job could be undertaken remotely and she could efficiently and effectively undertake them from home. It is uncontroversial that some of her duties could be undertaken remotely but that takes the matter no further. Since commencing her employment Ms Zhang has been working from home for periods consistent with the CHO’s work from home directions that Parks Victoria put in place to facilitate working from home. However, once the CHO’s work from home directions ceased operating, Parks Victoria was entitled to insist that Ms Zhang’s duties be carried out on site in accordance with the employment contact. That some or even all the duties could be carried out remotely is beside the point. Ms Zhang agreed when she entered her employment contract that her ordinary place of work would be at the office of Parks Victoria in Morwell. This is the default or normal position. Parks Victoria was entitled to give directions to Ms Zhang time to time that work should be undertaken from home on some days, and it did this during the onset of the COVID-19 pandemic and in response to CHO work from home directions. But the arrangements it put into place for employees including Ms Zhang were always only temporary.

[32] Thus the requirements of her specific role are or include the requirement that she carry out those duties at the workplace in Morwell and not from home. Any variation to that would be considered in the context of the hybrid work model that Parks Victoria was developing. Working from home on a full-time basis was simply not an option, and in the circumstances of the requirements of her employment contract, the refusal to allow Ms Zhang to do so was not unreasonable.

[33] Secondly, I consider that Ms Zhang’s application for flexible working arrangements is motivated largely, if not exclusively, by her opposition to becoming vaccinated for COVID-19. This is evident from the following:

•  The timing of her request for flexible work arrangements – made on 22 November 2021 – just a few days before the deadline for becoming fully vaccinated as a condition of attending the office arrived;

•  Ms Zhang’s submissions filed in this proceeding devote the first 23 paragraphs to contentions about vaccination for COVID-19 and vaccination mandates, their efficacy and her reasons for not becoming vaccinated for COVID-19;

•  In Ms Zhang’s application, in answer to the question “what is this dispute about”, she sets out the following:

1. Protection of private medical information that has previously been shared around the business in a transparent way.

2. The right to a safe workplace which includes being provided with a risk assessment for what is being asked of me in relation to a undergoing a medical procedure as a condition of my employment.

3. Consultation in relation to changes in the workplace and/or the conditions of my employment rather than having the conditions of my employment and Enterprise Agreement unilaterally changed without consultation or an opportunity for negotiation.

4. My employer is using coercion to make me undergo a medical procedure against my will and is using the threat of stand down without pay or termination of my employment to get compliance.

•  Ms Zhang’s evidence that although the information recorded in her application is correct, she was not motivated in her request for flexible working arrangements by her reluctance to become vaccinated²⁷ is simply not credible in light of the matters described above.

[34] Given the above, I consider that the flexible working arrangements sought by Ms Zhang were sought as a shield to becoming vaccinated or to avoid the possible consequence for her on-going employment of not becoming vaccinated. The substance of the dispute is about the position Parks Victoria was required to adopt by reason of the operative CHO direction as to vaccination and its employees working on site, and Ms Zhang’s opposition to it and to being vaccination for COVID-19. Whether Ms Zhang chooses to be vaccinated is a matter for her, but the choice she makes has consequences for her capacity to work outside of her home. Parks Victoria is under no obligation to accommodate her request for a full time working from home arrangement, when the motivation for the request is largely for the reasons I have found above. In the circumstances it is not appropriate that relief sought by Ms Zhang be granted.

[35] Thirdly, to the extent that there is some connection between Ms Zhang’s request for flexible working arrangements and the need to home school her daughter, the continuing need for home schooling has entirely dissipated. Ms Zhang’s evidence was that she and her husband decided to home school her eldest daughter because a condition of attendance at school was for her daughter to wear a mask. Ms Zhang gave evidence that she was opposed to children wearing masks, specifically her own child.²⁸

[36] Pending the hearing and determination of this application, Ms Zhang has been permitted to continue to work from home on a full-time basis. However, since the commencement of term two in Victoria, mask mandates for children of her daughter’s age have been discontinued. Mask wearing at school remains voluntary. There is thus no need for a continuation of the home-schooling arrangements. The grant of the relief sought by Ms Zhang to facilitate the continuation of such an arrangement is unnecessary.

[37] For completeness, there is nothing to prevent Ms Zhang from now requesting a change in working arrangements, either under s 65 of the Act or clause 60 of the 2021 Agreement if her circumstances meet the preconditions, or she could request changes consistent with the hybrid working model proposed by Parks Victoria.

Conclusion

[38] For the reasons set out, there is no proper basis to grant Ms Zhang the relief sought, and the application made by Ms Zhang in C2021/8533 will be dismissed.

Order

[39] The application C2021/8533 is dismissed

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR741704>

Appearances:

Ms M Zhang on behalf of herself

Mr N Harrington of Counsel for the Respondent

Hearing details:

2022

Melbourne (by video)

18 March

1 Transcript PN5 – PN6

2 Exhibit 4 at [7], annexure FL – 1

3 Transcript PN 177 – PN 178

4 Exhibit 4 at [9]

5 Ibid at [11]

6 Ibid at [12]

7 Ibid

8 Ibid at [13]

9 Ibid at [15]

10 Ibid at [14] – [15]

11 Ibid at [16]; annexure FL – 3

12 Ibid

13 Ibid

14 Ibid at [18], annexure FL – 6

15 Ibid

16 Ibid at [19], annexure FL – seven

17 Ibid at [20], annexure FL – 8

18 Transcript PN154-PN158, PN 404 – PN 424

19 Transcript PN 245 – PN 249

 20   Transcript PN838

21 Transcript PN 265 – PN 277

22 Transcript PN 848 – PN 849

23 Transcript PN 372

24 Exhibit 4 at annexure FL – 7

25 [2020] FWCFB 5054

26 Exhibit 4 at attachment FL – 8

27 Transcript PN 397

28 See for example PN 234