General protections and workplace rights

The Fair Work Act provides inter alia that a person who is an employee has a workplace right if the person is able to make a complaint or inquiry in relation to his or her employment; see sub-sec 341(1)(c). The following passage from a recent decision of the Federal Court of Australia explains what this means.

“3.3.2  Employment-related complaints or inquiries

  1. Amongst other means, an employee possesses a workplace right if he or she is able to make a complaint or inquiry in relation to his or her employment: FW Act, s 341(1)(c)(ii).
  2. In PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 (hereafter, “PIA”), 252-253 [134]-[139] (Snaden J), I made the following relevant observations on those scores:

In order that the making of a complaint or inquiry might amount to the exercise of a workplace right of the sort to which s 341(1)(c)(ii) of the FW Act refers, it must pertain, as a matter of substance, to its maker’s employment. That being so, it is necessary to consider whether either or both of the [complaints that were made in that case] were of that nature: that is, were they complaints or inquiries that pertained to Mr King’s employment?

That requires analysis at two levels:  first, did each of the [relevant complaints] qualify as a “complaint or inquiry”; and, second, did each arise “in relation to [Mr King’s] employment”?

The Macquarie Dictionary relevantly defines “complaint” and “inquiry” respectively as follows:

complaint

  1. an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding.
  2. a cause of grief, discontent, lamentation, etc.

inquiry

  1. the act of inquiring, or seeking information by questioning; interrogation.
  2. a question; query.

– phr 4.  make inquiry (or inquiries), to request information: to make inquiries at the office.

A “complaint”, then, 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:  see, in that vein, Hill v Compass Ten Pty Ltd (2012) 205 FCR 94 (Cowdroy J). In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346…this court had occasion to consider what might qualify as a “complaint” for the purposes of s 341(1)(c)(ii) of the FW Act. Dodds-Streeton J there observed (at 353-354 [29]) that:

…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)…

I respectfully adopt her Honour’s reasoning.  I note that the second of the four propositions to which her Honour adverted in the passage above was the subject of some consideration on appeal:  see Shea v EnergyAustralia Services Pty Ltd (2014) 242 IR 159, 163 [12] (Rares, Flick and Jagot JJ). Whilst the full court did not appear to adopt Dodds-Streeton’s J implication of good faith, they did not reject it and the appeal was decided on other issues: see, on that score, The Environmental Group Ltd v Bowd [2019] FCA 951, [144] (Steward J)…

Whether a complaint or inquiry qualifies as a complaint or inquiry made “in relation to…employment” depends upon the subject matter that is sought to be agitated.  It is not necessary that a complaint be directly related to its maker’s employment:  Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, [64] (Katzmann J); Shea, [631] (Dodds-Streeton J).  In Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468, 476 [42] (Bromberg J), this court determined that the connection between a complaint and employment would likely exist in circumstances “[w]here the subject matter of the complaint raises an issue with potential implications for the complainant’s employment”.

That reasoning has been followed (see, for example, Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19, [68]-[69] (Mortimer J)) although not universally without qualification (see, for example, The Environmental Group Ltd v Bowd [2019] FCA 951, [126] (Steward J)).

  1. Although I dissented in the outcome in that case, those observations were not obviously controversial.  The majority (Rangiah and Charlesworth JJ) did not address the conceptual boundaries of “complaints” or “inquiries”; their Honours instead focused upon the primary issue in that case, namely whether the complaints that had been made were complaints that the former employee was “able to make”.
  2. In The Environment Group Pty Ltd v Bowd (2019) 137 ACSR 352 (hereafter, “Bowd”), Steward J questioned whether the “potential implications” test might be appropriate for senior management employees, whose conduct as such might be thought always to have at least potential employment ramifications.  His Honour observed (at 392 [126]):

…in the case of a CEO, the complaint must be one directed at or concerned with that person’s employment in a substantive way.  In that respect, observing the required nexus may be direct or indirect, may not greatly assist.  It must, as a matter of substance, be about that CEO’s employment.

3.3.3  The exercise of workplace rights

  1. Not all complaints or inquiries that an employee makes in connection with his or her employment are complaints or inquiries made in the exercise of a workplace right or rights. Section 340(1) of the FW Act, insofar as it applies presently, prohibits adverse action that is occasioned on account of a person having exercised a workplace right: FW Act, s 340(1)(a)(ii). Section 341(1) identifies the circumstances in which a person has such a right. It is only in circumstances where a person exercises a right that he or she possesses that the protection afforded by s 340(1)(a)(ii) is enlivened. For present purposes, a person has—and, therefore, can exercise—a right to complain or inquire in relation to their employment if that complaint or inquiry is one that they are “able to make”: FW Act, s 341(1)(c)(ii).
  2. Employees are not possessed of an ability to complain or inquire in relation to their employment merely because they possess a capacity to communicate a grievance or interrogatory.  In Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346, (hereafter, “Shea”; Dodds-Streeton J), this court made the following relevant observations (at 440 [625]):

…the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment.  The ability to make a complaint does not arise simply because the complainant is an employee of the employer.  Rather, it must be underpinned by an entitlement or right.  The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

  1. Her Honour’s observations have been the subject of recent full court endorsement:  PIA, 229 [12] (Rangiah and Charlesworth JJ), 257-258 [164] (Snaden J); Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 (hereafter, “Whelan”), 55-56 [28] (Greenwood, Logan and Derrington JJ).
  2. Whelan concerned a claim by a former employee who alleged that he had been the victim of adverse action because of complaints or inquiries that he had made about his contractual bonus entitlements.  There was no suggestion, in that case, that the employee was authorised to make those complaints pursuant to any right or entitlement conferred upon him to that end.  Although purporting to endorse and apply what Dodds-Streeton J said in Shea, the learned trial judge held that those complaints nonetheless were complaints that the employee was “able to make” because they were complaints about entitlements that his employment contract conferred upon him. The full court endorsed that reasoning on appeal. Thus, the gamut of employment-related complaints that might qualify as complaints that an employee was “able to make” for the purposes of s 341(1)(c)(ii) was expanded to include not merely those that were made in the exercise of rights or entitlements conferred to that end, but also those whose subject matter concerned other rights or entitlements (or, at the very least, other rights or entitlements that found expression within a contract of employment).
  3. In PIA, a former employee claimed to have been dismissed (and, thereby, to have been subjected to adverse action) because he had made two complaints: one that his employer had proposed to dismiss him in contravention of a term of his employment contract; the other that the employer had misled him into accepting employment in the first place. At first instance, both complaints were held to be complaints of the kind to which s 341(1)(c)(ii) of the FW Act referred. On appeal, the majority reached the same view. The following observations of the majority (at 232-233 [26]-[27]) assume some significance:

An employee is “able to complain” to his or her employer within s 341(1)(c)(ii) of the FW Act concerning the employer’s alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is “able to complain” to the employer or to a relevant authority of their employer’s alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority. As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.

The variety of circumstances arising in employment law cases is notoriously wide. Nothing we have said is intended to foreclose argument as to other circumstances that may give rise to an ability to make a complaint. Nor is it intended to foreclose argument about any limitation as to whom a complaint may be made for the purposes of s 341(1)(c)(ii) of the FW Act.

  1. In Cummins South Pacific Pty Ltd v Keenan (2020) 302 IR 400 (hereafter, “Cummins”), 413-419 [45]-[67] (Bromberg J in obiter, with whom Mortimer J agreed; Anastassiou J contra at 462-467 [281]-[291]) described the reasoning in (amongst others) PIA, Whelan and Shea as “plainly wrong” (or, perhaps more accurately, indicated that he would have described it thus had it been necessary in that case to do so). His Honour expressed the view that any employment-related complaint, whether or not made as an exercise of some right or entitlement, would suffice to excite the application of s 341(1)(c)(ii) of the FW Act.
  2. Thus there is, it is fair to say, scope for some confusion about the conceptual limits of s 341(1)(c)(ii) of the FW Act. Shea makes clear that the section does not cover complaints at large.  That reasoning enjoys full court endorsement.  It is apparent, from Whelan and the majority’s observations in PIA, that the section contemplates complaints or inquiries about the trespass, or threatened trespass, of rights or entitlements conferred contractually or by statute (for example, the right to have bonuses calculated in a particular way, the right to payment on dismissal for the balance of a fixed-term contract or the right not to be misled into accepting employment).  That is so because, as the majority in PIA explained, the law that confers those rights—whether it be the general law or statute law—also (and in each case) confers a related right or entitlement to complain about their trespass or threatened trespass.  Although, in that case, I expressed the contrary view that “[t]here is nothing inherent in an ability to vindicate rights under the law that confers a related ability to complain about their trespass beforehand”, there is no binding full court authority to that effect.  I am bound to apply the law as the majority in PIA stated it.
  3. For the sake of completeness, s 341(1)(c)(ii) also contemplates complaints or inquiries about subjects other than the actual or threatened contravention of contractual or statutory rights; but only if their maker is endowed with a right or entitlement to make them, howsoever that right or entitlement might be conferred.
  4. In order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, the employee must first demonstrate that it was made in the exercise of some right or entitlement conferred upon them, whether instrumentally or otherwise.  It is not sufficient that a complaint or inquiry is made simply because the employee feels (with justification or otherwise) that he or she has something to complain or inquire about.  What must be shown is some right or entitlement to make the complaint or inquiry:  some conveyed ability that distinguishes the making of a complaint or inquiry that qualifies as the exercise of a workplace right (on the one hand) from the making of a complaint or inquiry that (on the other) does not so qualify.  In Maric v Ericsson Australia Pty Ltd [2020] FCA 452, Steward J held (at [55]):

For a person to be “able” to make an inquiry, that capacity must be anchored in a legal entitlement of some kind, whether it be statute, contract law, the common law of Australia, or some other instrument or thing that confers legal rights, in the sense described by Rangiah and Charlesworth JJ. in [PIA].

  1. His Honour was there referring to an employee’s ability to “make an inquiry” but the entitlement to which he referred applies in the same way to an ability to make a complaint.”

 

Wong v National Australia Bank Limited [2021] FCA 671 delivered 22 June 2021 per Snaden J