General protections; exercising a workplace right

Sections 340 and 341 of the Fair Work Act collectively define the exercise of a workplace right inter alia as the making of a complaint or inquiry in relation to an employee’s employment. What does this mean? Here is the answer in a recent decision of the Federal Circuit Court of Australia.

“Complaint or inquiry

An employee has a workplace right if the employee is able to make a complaint in relation to his or her employment: s.341(1)(c)(ii) of the FW Act.

For a communication to be a “complaint” for the purposes of section 341(1)(c) of the FW Act, it must be more than a mere request for assistance. It must state a particular grievance or finding of fault: Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 (“Zhang”); Hill v Compass Ten Pty Ltd [2012] FCA 761 per Cowdroy J. Ultimately, a complaint must convey, and have been intended to convey, a complaint: Zhang.

In Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 (“Trilab”) at [16] per Judge Lucev, this Court noted that divergent approaches have emerged in this Court and the Federal Court as to when an employee “is able to make a complaint”. For reasons which will become apparent it is unnecessary for the Court to deal further with dichotomy in views as to the proper construction of s.341(1(c) of the FW Act as reflected in judgments of this Court which have applied both views: see Trilab.”

 

CARRABBA v PFP (AUST) PTY LTD & ANOR [2019] FCCA 2857 delivered 9 October 2019 per Lucev J