This portion of a decision of the Federal Court summarizes some of the important legal principles which arise in general protections claims involving allegations of adverse action.
“CLAIMS UNDER THE FAIR WORK ACT
The applicant must show that the respondent took adverse action against her, because she exercised various workplace rights, and that the adverse actions were each taken because of a prohibited reason. The onus is on the applicant to demonstrate the exercise of the workplace rights, and that the adverse actions alleged were taken against her. After that, the onus shifts to the respondent (see s 361 of the FW Act) to prove that any adverse action was not taken for a prohibited reason.
I will briefly deal with the legislative framework.
Legislative framework
The Fair Work Act
Section 340 of the FW Act provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
The meaning of “workplace right” is defined in s 341 of the FW Act. That section relevantly provides:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
The applicant contends that the respondent breached cl 270 of the Enterprise Agreement in breach of s 50 of the FW Act (which is found in Part 2-1, Division 2). Section 50 provides:
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4‑1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
The Enterprise Agreement
Clause 270 of the Enterprise Agreement reads:
Bereavement leave
- Employees will be eligible for 3 days paid bereavement leave on each occasion when:
270.1 a member of their family (including a member of their household) or someone they had a close personal relationship with dies; or
270.2 a child is stillborn, where the child was a member of their family (including a member of their household).
- An employee may be asked to provide evidence to support their absences on bereavement leave.
- Bereavement leave for an occasion may be taken as 3 consecutive days or in separate periods totalling 3 days. This can include part days.
What is a complaint or inquiry?
A “complaint” is “a communication that states a grievance or that otherwise asserts the existence of a state of affairs that its maker alleges is unsatisfactory, undesirable or unacceptable”: PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; [2020] FCAFC 15 at [137] (Snaden J). A complaint or inquiry qualifies as the exercise of a workplace right if it was “made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise”: Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677 at [150] (Snaden J).
In Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 (White, O’Callaghan and Colvin JJ), the Full Court said (at [59]):
In the context of s 341(1)(c), the term “complaint” connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]-[581] per Dodds-Streeton J (cited with approval in Cummins South Pacific at [13]). Her Honour continued, at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
See also PIA at [137] citing Dodds-Streeton J’s observations in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 at [29] in relation to the meaning of “complaint”:
… in the context of s 341(1)(c)(ii) of the [FW] Act:
(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;
(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;
(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]
(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii) …
An inquiry “involves an investigation or an examination made for the purposes of acquiring knowledge or information” and “includes a request for information or the posing of a question by an employee in relation to his or employment”: Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [43] (Feutrill J).
The characterisation of a communication should not be overly artificial or technical; s 341(1)(c)(ii) is given, in the cases cited above, a reasonably (but not unlimited) broad interpretation.
The complaint or inquiry relied upon is subject to a subject matter requirement; that it be “in relation to” the person’s employment. In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 (CFMEU), Katzmann J said at [61] that:
A relationship connotes a connection or association between two things. Phrases like “related to”, “relating to” or “in relation to” are prima facie, at least, extremely wide.
The words “is able to” in s 341(1)(c)(ii) have been construed to mean that the right to make a complaint or inquiry is not at large, but must be underpinned by a legal right or entitlement, the source of which entitlement may include a contract of employment, award or legislation: Shea at [625]; Messenger at [149]; Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170; [2023] FCAFC 163 at [324]–[330] (Katzmann J).
I need to consider whether each complaint or inquiry made by the applicant relates to a workplace right: Alam at [27]. The respondent accepts that a number of the matters relied on by the applicant are exercises of workplace rights by the applicant, and these are identified below.
What is an adverse action?
Under s 342(1) of the FW Act, an employer is taken to have taken adverse action against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice …
An employee is “injured” in their employment if they suffer “injury of any compensable kind”: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [4] (Brennan CJ, McHugh, Gummow, Kirby, Hayne JJ).
An action which alters the employee’s position to their detriment covers not only legal injury but “any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”: Patrick Stevedores at [4]. Accordingly prejudicial alteration “may occur even though the employee suffers no loss or infringement of a legal right”, but the alteration must be “real and substantial rather than merely possible or hypothetical”: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 at [32] (Gray, North and Besanko JJ). The “employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct”: Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 at [86] (Gordon J).
In Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93; [2001] FCA 267 the Court explained the reach of the concept of prejudicial alteration at [17]–[18] as follows (in reference to the equivalent provision under the now repealed Workplace Relations Act 1996 (Cth)):
The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).
The principles of s 361 are settled and set out in Alam at [14], which was cited with approval by the Full Court in Serco Citizen Services Pty Limited v Parsons (2025) 310 FCR 436; [2025] FCAFC 83 (Collier ACJ, Needham and Wheatley JJ) at [57]. I need not repeat those principles here; suffice to say, as contended by the respondent, in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria (2015) 249 IR 217; [2015] FCAFC 55 (Dowsett, Bromberg and Murphy JJ) at [55].”…………
Dr Zabortseva v Commonwealth of Australia as represented by the Australian Public Service Commission [2025] FCA 1585delivered 15 December 2025 per Needham J