Fair work general protections; what is a workplace right

In simplistic terms, one of the general protections under the Fair Work At provides that it is unlawful (ie a contravention of the Act) for an employer to take adverse action against an employee because he or she has exercised or proposes to exercise a workplace right. Since 2009 there has been much judicial controversy about what constitutes a workplace right. Sec 341 of the Act attempts to define a workplace right by providing that a person has a workplace right in the case of a person who is an employee if the person amongst other things is able to make a complaint or enquiry “in relation to his or her employment”.

The controversy has essentially arisen from different juridical decisions about whether or not the complaint or inquiry must be about an issue which the employee has a legal right to make, or whether it also covers a complaint or inquiry which is merely legitimate and genuine in a workplace sense (eg do I have to work alongside X or must I wear this silly uniform) or must it be underpinned by a legal right (eg where is the bonus my contract entitles me to?)

Lately, the courts appear to have begun a move towards the latter as is evident in the following passage from a recent decision of a Full Bench of the Federal Court of Australia.

“The relevant clauses from Mr Whelan’s contract of employment are set out at para 36 of the primary judge’s reasons for judgment.  It is not necessary again to reproduce them.  They made provision for the annual fixing of a bonus plan and, at the very least, contemplated the payment to him, as a matter of discretion, of bonuses.  He was entitled to make complaint or inquiry on these subjects. The following discussion of principle by the primary judge (at [33] – [34]) is, with respect, unremarkable and correct:

Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.

As a general proposition, a complaint or inquiry to the employer by an employee relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.

The pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by her Honour, the exercise of a workplace right for the purposes of the FW Act.”

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 delivered 8 February 2019 per Greenwood, Logan and Derrington JJ