One of the critical elements in the general protections of the Fair Work Act is the protection against adverse action being taken because of a complaint or inquiry having been made or the ability to do so.; see sub- sec 341(1)(c) (ii). But what is the nature of a complaint or inquiry in that sense: here is an explanation.
“Ms Clarke submits that the concept of a “complaint” for the purpose of s 341(1)(c)(ii) of the FW Act is to be construed broadly. In support of this submission, she referred generally to Alam v National Australia Bank Ltd (2021) 288 FCR 301; [2021] FCAFC 178 (Alam), Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 (Cummins South Pacific), and Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 (Shea v TRUenergy). However, Ms Clarke did not identify any particular passages in those judgments that were said to support the conclusion that Ms Clarke’s rejection of Mr Emmerson’s request was a “complaint” within the meaning of s 341(1)(c)(ii).
In each of Alam, Cummins South Pacific and Shea v TRUenergy, the applicant’s statement of claim alleged that adverse action was taken against the applicant because they had made various complaints about conduct engaged in by other employees. In each case, one or more of the alleged complaints was found to be a complaint for the purpose of s 341(1)(c)(ii) of the FW Act, while others were not. In all three cases, the alleged complaints were constituted by statements that were made by the applicant to another person about the conduct of a third person. None of the decisions in Alam, Cummins South Pacific or Shea v TRUenergy support the proposition that the very act of declining a sexual advance itself constitutes the making of a complaint and thus amounts to the exercise of a workplace right.
In Shea v TRUenergy, Dodds-Streeton J considered (at 354 [29(a)], [29(d)] – and see also 440 [627]) that, in the context of s 341(1)(c)(ii) of the FW Act, 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”. Her Honour also considered that “the proper purpose of making a complaint was giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed”. Likewise in Cummins South Pacific, Bromberg J identified the basic concept of a “complaint” in s 341(1)(c)(ii) as follows at 428 [13]:
The natural meaning of the term “complaint” in the context in which it is used in s 341(1)(c) connotes an expression of discontent which seeks consideration, redress or relief from a matter in relation to which the complainant is aggrieved. A complaint is more than a mere request for assistance and must state a particular grievance or finding of fault: [Shea v TRUenergy at 433 [579]-[581]] and the authorities there cited. Whether an employee has made a complaint is a matter of substance, not form, and is to be determined in light of all the relevant circumstances, it being only necessary that the relevant communication, whatever its form, is “reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: [Shea v TRUenergy at 440 [626]‑[627]].
The Full Court in Alam (at 322 [59]) referred to these statements with approval.”
Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734 delivered 12 June 2026 per Mcdonald J