General protections; workplace right settled for the time being

The general protections in the Fair Work Act contain a prohibition upon an employer taking adverse action, which includes a demotion or dismissal of an employee, because, inter alia, the employee has or proposes to exercise a workplace right. Sec 341 of the Act provides, once again inter alia, that an employee has a workplace right if the employee is able to make a complaint or enquiry….”in relation to his or her employment”.

For many years now, there has been a judicial controversy, particularly evident in the Federal Circuit Court and the Federal Court, as to whether this ability to make a complaint or enquiry is required to emanate from an express legal entitlement or merely as a consequence of being an employee.

The controversy still exists but to some extant has been hosed down by this decision of a Full Federal Court which decided that the law on this issue is as is indicated in paras 74-76 of the following extract which I have highlighted in bold.

 

“Characterisation of the Complaints or Inquiries alleged by the appellant

“58 Counsel contended first that the communications said by the appellant to constitute the making of Complaints or Inquiries 1‑9 in relation to her employment for the purpose of s 341(1)(c) were not, properly understood, of that character, with the consequence that the prohibition in s 340, let alone the rebuttable presumption in s 361, was not attracted.

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]; Cummins South Pacific at [13] per Dodds‑Streeton J. 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.

60 The distinction between a complaint and a mere request for assistance had been made in earlier authorities: Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99(2005) 144 FCR 347 at [36]‑[37]; and Hill v Compass Ten Pty Ltd [2012] FCA 761(2012) 205 FCR 94 at [48]. It is possible that some requests for assistance may be able to be characterised as “inquiries” for the purposes of s 341(1)(c) (for example, an inquiry as to whether the recipient is able to provide the requested assistance) but it was not suggested that a characterisation of that kind was appropriate in relation to any of the appellant’s alleged requests or inquiries.

61 In our view, each of the Complaints or Inquiries Nos 2, 3 and 7 should be characterised as a request and not as a “complaint” or “inquiry” of the kind contemplated by s 341(1)(c). Plainly, Complaint or Inquiry No 2 was simply a request for assistance in establishing an account which the appellant required for her work. Likewise, Complaint or Inquiry No 3 was simply a request that Ms Gorbunova arrange the issue of a letter of authority. In Complaint or Inquiry No 7, the appellant did no more than request a meeting with Ms Gorbunova for the purpose of discussing particular work arrangements.

62 We also consider that Complaint or Inquiry No 1 cannot reasonably be characterised as a complaint or inquiry of the requisite kind. The appellant asserted no more than that she was acquainting Ms Gorbunova with concerns she had concerning the conduct of another employee but stated expressly that she had told Ms Gorbunova that she did not “need to make a complaint”.

63 However, we accept that the 4th‑6th and 8th‑10th Complaints or Inquiries as articulated by the appellant are capable of constituting a complaint or inquiry of the requisite kind and, to this extent, do not accept NAB’s submission. That is so because in each the appellant claims that she had raised a grievance in respect of which she had sought Ms Gorbunova’s assistance.

Was the appellant “able to make” the complaints or inquiries?

64 NAB submitted that, even if the alleged complaints or inquiries could be properly characterised as complaints or inquiries for the purposes of s 341(1)(c), they were not complaints or inquiries which the appellant was “able to make … in relation to … her employment” for the purposes of s 341(1)(c).

65 The meaning of the expression “is able to make a complaint or inquiry” in relation to the employment in s 341(1)(c) has been the subject of divergent views in this Court. It has been accepted, however, that the complaints and inquiries to which the section refers are not confined to those which can be made to an external authority or to persons with the capacity to seek compliance with a legal obligation, but include complaints or inquiries made to the employer itself in relation to the person’s employment: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908(2013) 238 IR 307 at [141]‑[143] (Jessup J); Shea v TRUenergy at [600].

66 An early case was Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 in which the principal allegations were that the employer had taken adverse action because of complaints made by the employee about work safety issues. Katzmann J was not required to consider the expression “is able to” but did consider whether the employee’s complaints were in relation to his employment. Her Honour prefaced her findings that the complaints were of this character by saying:

[64] In my view, in s 341(1)(c)(ii) the requisite relationship between the complaint or inquiry with the employee’s employment may be direct or indirect. No contrary indication may be gleaned from the context of the words or the drafting history. Mr Fernon SC, who appeared for the respondent, conceded that the words should be interpreted broadly, though he submitted they were not without limits. That qualification may be accepted but the limits are to be found in the nature and purpose of the legislation, which includes the protection of workplace rights.

67 In Murrihy v Betezy, Jessup J adopted a broad view of the ability to make a complaint or inquiry to which s 341(1)(c) refers. His Honour said:

[141] … Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says …

[142] In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period. It was the inefficacy of those complaints, and the applicant’s frustrations with the respondents’ failure to address them, that led to her advising Mr Kay on 20 September 2011 that she proposed to seek legal advice. The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii). A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act. Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is – and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.

[143] Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision …

(Emphasis added)

68 Section 341(1)(c) was considered in some detail by Dodds‑Streeton J in Shea v TRUenergy. In the summary of her conclusions, her Honour said that a complaint which an employee is able to make in relation to his or her employment is not at large, but “must be founded on a source or entitlement, whether instrumental or otherwise”, at [29(f)]. In the substantive part of her reasons, Dodds‑Streeton J said:

[665] In my opinion, 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.

(Emphasis added)

69 As is apparent, Dodds‑Streeton J considered that, for a complaint to be one which an employee is able to make, it must be underpinned by “an entitlement or right” of the employee. Her Honour’s reasons did not make clear the nature of the requisite “underpinning”, for example, whether it is the ability to make a complaint or inquiry which must be “underpinned” by an entitlement or right or whether it is the subject of the complaint or inquiry which must have that underpinning.

70 Dodds‑Streeton J distinguished Murrihy v Betezy by saying:

[594] In my view, it does not follow from Jessup J’s reasoning that s 340(1)(c)(ii) would cover a complaint or inquiry made to any person at all in relation to employment. Nor, contrary to the applicant’s submission, did his Honour hold that the ability to make a complaint required no instrumental source of entitlement. To the contrary, his Honour’s reasoning appeared to assume the existence of an entitlement or right under an instrument, such as the contract of employment or relevant legislation.

71 It is to be observed that the focus of Dodds‑Streeton J in Shea v TRUenergy was on the ability of an employee to make a complaint, rather than the ability to make an inquiry. This is particularly manifest in the summary of her Honour’s conclusions in [29] of the judgment.

72 The appeal against the decision of Dodds‑Streeton J was dismissed: Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167(2014) 242 IR 159 without it being necessary for the Full Court to discuss the meaning of the term “able to make a complaint or inquiry … in relation to his or her employment”. However, the Full Court did say, at [12], that considerable care should “be exercised” before implying into s 341 any constraint which would inhibit an employee’s ability to freely exercise the important statutory right to make a “complaint”.

73 The approach of Dodds‑Streeton J has been followed by judges at first instance in a number of cases. With limited exceptions, it is not necessary to refer to the single judge decisions because the issues have now been considered more than once by the Full Court.

74 In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534(2017) 275 IR 285, Collier J found that the workplace right exercised by the employee was the making of inquiries in the weeks prior to, and on the day of, his dismissal about either payment of a bonus or the establishment of a bonus plan. Her Honour stated the principles she was applying in the following terms:

[33] 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.

[34] As a general proposition, a complaint or inquiry to the employer by an employee in 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.

75 It is evident that, in applying the approach of Dodds‑Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).

76 On the appeal (Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16(2019) 268 FCR 46), the Full Court (Greenwood, Logan and Derrington JJ) at [28] described the statement of principle by Collier J in [33]‑[34] as “unremarkable and correct” and held that the pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by Collier J, the exercise of a workplace right for the purposes of the FW Act.

77 Section 341(1)(c) was considered by the Full Court (Rangiah, Charlesworth and Snaden JJ) in PIA Mortgage. In that case, the employee alleged that he had been dismissed in contravention of s 340 because of his exercise of two workplace rights. The first was his right to complain to the employer about its foreshadowed breach of his contract of employment by terminating the employment before the expiry of the agreed term. The second was his exercise of his right to complain to the employer about its alleged contravention of s 31 of the Australian Consumer Law (the ACL), said to be constituted by its misleading conduct when he was seeking the employment. The majority (Rangiah and Charlesworth JJ) held that these were complaints which the employee was able to make under the general law and sufficient to found the exercise of a workplace right. Snaden J dissented on this issue.

78 Rangiah and Charlesworth JJ noted, at [13], that the statement of Dodds‑Streeton J that the complaint “must be underpinned by an entitlement or right” could refer to an entitlement or right to make a complaint or could encompass any complaint by employees concerning an entitlement or right related to their employment. Their Honours concluded, at [13]‑[14], that the former was the preferable understanding. With respect to their Honours, that conclusion seems inconsistent with the reasoning of the Full Court in Whelan, including its endorsement of the statement of principle by Collier J.

79 However, Rangiah and Charlesworth JJ went on to give a seemingly expansive view of the nature of the right or entitlement which may form the basis of a workplace right to make a complaint or inquiry. Their Honours considered that an employee may have the requisite ability to make a complaint or inquiry not only by reason of a workplace law, a workplace instrument or an order made by an industrial body (being the source of the entitlements referred to in s 341(1)(a) and (b)), but also from legislative provisions which are not workplace laws, contractual terms providing a right to make complaints, and from the general law, at [16]. Rangiah and Charlesworth JJ explained:

[18] … Section 341(1)(c)(ii) must at least apply where a contract of employment confers a right upon an employee to raise a grievance or otherwise complain about his or her employment. However, the broad language used does not purport to confine the right to complain to one arising under a contract of employment, and, in our opinion, extends to a right to complain arising under the general law.

[19] Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by” (to use Dodds-Streeton J’s expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.

[20] Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint.

80 Rangiah and Charlesworth JJ concluded:

[26] 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.

81 Rangiah and Charlesworth JJ considered that this construction of s 341(1)(c)(ii) was consistent with the judgment of the Full Court in Whelan. There is, however, a difference. Whereas Whelan had not required that the right or entitlement to make a complaint or inquiry itself have an instrumental source, that is the construction preferred by Rangiah and Charlesworth JJ in PIA Mortgage, although, as noted, their Honours adopted an expansive view of the circumstances in which that right or entitlement may be found. Their Honour’s view, in effect, is that if an employee has a right or entitlement derived from legislation, an instrument or a contract of entitlement, the employee has the right or entitlement required by Shea v TRUenergy to make a complaint or inquiry about it. The difference in practice of the application of the two approaches may not be significant.

82 In his dissenting judgment in PIA Mortgage, Snaden J said that, in order for the applicant to demonstrate that his complaint or inquiry was one which he was “able to make”, he had to “identify the source of an entitlement or right to complain or inquire as he did”, at [165]. His Honour considered that such an entitlement or right to complain or inquire may be found in a clause in an employment contract regulating the manner in which disputes are to be resolved, an award or other statutory instrument providing for the airing of employment‑related grievances, or in a statutory procedure for the prosecution of alleged safety (or other employment‑related) infractions, or in an applicable workplace policy or procedure document which stipulates the means by which an employee might procure certain information from his or her employer, at [165]. His Honour continued:

[168] … A person is not endowed with an ability to complain about something merely because he or she has something to complain about. What must be shown is some right or entitlement to complain or inquire: some conveyed ability that distinguishes a complaint or inquiry that qualifies as the exercise of a workplace right from a complaint or inquiry made merely as an incident of the complainant’s ability to communicate.

[169] That reasoning is consistent with what Dodds-Streeton J concluded in Shea and, at least at the level of principle, with the court’s endorsement of that conclusion in Whelan (both at first instance and on appeal). It recognises, as her Honour and their Honours did (and as the majority here does), that a distinction must be drawn between complaints that employees are able to make for the purposes of s 341(1)(c)(ii) of the FW Act and complaints that employees are not able to make for the purposes of s 341(1)(c)(ii) of the FW Act. With respect to those who think otherwise, complaints that are aired in aid of asserting rights allegedly conferred by statute or the general law are the latter. There is nothing inherent in an ability to vindicate rights under the law that confers a related ability to complain about their trespass beforehand. Absent some instrumental right to do so, a person who complains that their legal rights have been (or are being) interfered with does so not by dint of an ability conferred by the statute or law that establishes those rights; but, rather and more simply, by exercising nothing more than his or her freedom to communicate.

83 Snaden J concluded at [173]‑[174]:

[173] … In my view, it cannot be said that [an ability to complain or inquire] such an ability exists merely because the subject about which a grievance is aired or an inquiry is advanced is one for which a prevailing employment contract makes provision. That circumstance will undoubtedly qualify as a reason why an employee might see fit to prosecute a complaint or inquiry; but it does not confer a relevant ability to do so.

[174] A person does not possess—and, therefore, cannot exercise—an ability to complain or inquire of the kind to which s 341(1)(c)(ii) of the FW Act refers merely because he or she may have legal rights that are or might imminently be adversely affected by another person’s conduct, or that otherwise might potentially be the subject of some later vindication in court (whether under the general law of contract or otherwise). To the extent that Whelan (at first instance and on appeal) holds as authority otherwise, it represents what appears to be an unintended deviation from Shea, which, at the risk of repetition, holds in any event as a correct statement of the law.

(Emphasis in the original)

84 As is apparent from [174], Snaden J considered that the reasoning in Whelan, both at first instance and on appeal, had involved a “deviation” from Shea v TRUenergy. His Honour had expressed the same view earlier, at [164]. Snaden J considered nevertheless that it was open to him to apply his preferred approach to the construction of s 341(1)(c) on the basis of his belief that the deviation was “unintended”.

85 Section 341(1)(c) was considered again in Cummins South Pacific. Bromberg J (with whose reasons Mortimer J agreed) described as “problematic” the statement of Dodds‑Streeton J in Shea v TRUenergy that the ability to make a complaint had to be underpinned by an entitlement or right found in (but not necessarily limited to) an instrument such as a contract of employment, award or legislation, at [15]. His Honour undertook a review of the predecessors of s 340 and made a detailed textual and contextual analysis of s 341 itself. Bromberg J expressed his conclusion as to the meaning of the term “is able to” as:

[34] The words “is able to” are not of themselves words of limitation. Their function when used in paras (b) and (c) of s 341(1) is to identify an actuating circumstance by reference to an ability held by the person that the scheme seeks to protect. The subject of that ability or those abilities is then specified in the remainder of the paragraph. The plain words of the provision only raise one inquiry. Does the protected person hold or possess the particular ability specified? That is a factual inquiry made as part of an exercise for discerning whether a particular circumstance does or does not exist. There is nothing in the text and in particular the words “is able to”, which suggests that any inquiry is required as to the provenance of the ability held, that is, how the ability was acquired or whether or not there is some underlying foundation for its existence. All that matters, on the plain words of the provision and in the context of its function, is whether or not the circumstance exists that the protected person has or holds the specified ability.

86 Bromberg J then continued:

[44] … There is neither a purposive nor a rational basis for confining that protective field to complaints or inquiries about an extant right or entitlement of the employee.

[45] For many of the reasons already canvassed, there is no textual basis for the other way in which the observations in Shea have been understood – that the ability to complain or inquire referred to in s 341(1)(c) must be underpinned by a right or entitlement. It is the fact that the protected person has the particular ability described that is the actuating circumstance serving the function which I have explained. As earlier stated, how the person acquired that ability, or the source or provenance of that ability is not addressed by the text of s 341(1). It may be accepted that the text contemplates that not all persons will necessarily have the particular ability in question, but, contrary to the approach taken by Dodds-Streeton J, it does not follow that the intended beneficiaries of the protective reach of the provision are only those persons who have that ability because of some right or entitlement. The actuating circumstance is the fact that the protected person has the ability and not a right or entitlement which has enabled that ability to be held. Read in context with its operative prohibition (s 340(1)(a)(i)), if an ability specified by s 341(1) held by the protected person actuates the adverse action taken, the prohibition will have been engaged.

[46] The position may have been different if a person’s ability to initiate or participate in a process or proceeding under a workplace law or workplace instrument or the ability to make a complaint or inquiry were necessarily acts only able to be done as of right or by virtue of some legal entitlement. But that is not the case. In particular, a complaint or an inquiry are both simple acts constituted by a communication. It is difficult to think of a circumstance in which the ability of a person to make an inquiry depends upon a legal right to do so. People are ordinarily free to make an inquiry of others without some legal right or entitlement to do so. So too in relation to the making of a complaint. These are activities which are not ordinarily enabled by some legal right or entitlement …

87 The reasons of Bromberg J in Cummins South Pacific are obiter because his Honour concluded that the appeal should be allowed on other grounds, at [67]. Bromberg J did say, however, that “had [it] been necessary to decline to follow PIA and to do so on the basis that PIA was plainly wrong as to the proper construction of s 341(1)(c)(ii), I would have respectfully held that to be the case”: ibid. His Honour did not state a similar view with respect to the decision of the Full Court in Whelan but it may be inferred that was his Honour’s view – see also [59]‑[60] in Cummins South Pacific.

88 Although Anastassiou J agreed with the result in Cummins South Pacific, his Honour disagreed with the construction of s 341(1)(c)(ii) adopted by Bromberg J. After referring to a number of the authorities and reviewing in some detail the reasons of Rangiah and Charlesworth JJ in PIA Mortgage, his Honour concluded:

[285] In my opinion, it is plain from the reasoning of the majority in PIA Mortgage that the ability to complain within the meaning of s 341(1)(c)(ii) remains dependent upon the identification of an anterior right or entitlement to complain. The source of such right may be founded in an express right under or pursuant to the contract, in the general law or pursuant to statute. But there is nothing in their Honours’ reasoning which rejects the requirement that an anterior right or entitlement is a necessary element to satisfy the meaning of “able to” in s 341(1)(c)(ii).

[286] On the contrary, their analysis proceeds from an acceptance that there are limits to the protection afforded by s 340, accepts that Dodds-Streeton J in Shea identified the requirement that there be some anterior right or entitlement upon which the complaint is to be founded and then examines the potential sources of such rights or entitlements. For these reasons I respectfully disagree with Bromberg and Mortimer JJ that the majority in PIA Mortgage “significantly relaxed” the requirement in s 341(1)(c)(ii) that an ability to make an inquiry or complaint must be underpinned by a right or entitlement to do so.

[291] In my view, this Court should follow Cigarette & Gift and PIA Mortgage in relation to the application of criterion (f) from Shea unless shown to be clearly wrong. I respectfully disagree with the view expressed by Bromberg J, with whom Mortimer J agrees, that were it necessary for the disposition of this appeal to do so, they would decline to follow PIA Mortgage as to the proper construction of s 341(1)(c)(ii) on the basis that it was plainly wrong.

89 For completeness, we note that the Full Court in Flageul v WeDrive Pty Ltd [2021] FCAFC 102, considered it unnecessary to determine the ground of appeal challenging the application of the approach in Shea v TRUenergy in the decision at first instance.

90 Counsel for NAB submitted that this Court should regard the reasons of the majority in PIA Mortgage as both correct and as binding. He noted that PIA Mortgage has been followed at first instance in Maric v Ericsson Australia Pty Ltd [2020] FCA 452(2020) 293 IR 442 at [27] (Steward J); National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 at [186]‑[187] (Thawley J); Salama v Sydney Trains [2021] FCA 251 at [102] (Burley J); SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601 at [130]‑[143] (Rangiah J); and Wong v National Australia Bank Limited [2021] FCA 671 at [74] (Snaden J).

91 Counsel for the appellant contended that the Court should follow the approach stated by Bromberg J (with whom Mortimer J agreed) in Cummins South Pacific. He submitted that in the context of “competing constructions by different Full Benches … it is a matter for this Court to [have] regard and give such weight as the Court considers appropriate to each of their fellow judges and the constructions they put on that particular statute … [W]hen there is a conflict between different Benches … the Court … is not constrained by comity in having to find that … a judgment of another Bench, differently composed, was “plainly wrong””. Counsel did not advert to the effect of Whelan.

92 The underlying principle of comity to which counsel referred in this submission is an important one. The principle and the authorities bearing on it were reviewed recently by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153. It is that generally the Full Court of this Court will follow one of its earlier decisions unless entertaining a conviction that the earlier decision is wrong: FAK19 at [4]‑[9].

93 The submission of the appellant with respect to the choice available to this Court between the approaches in PIA Mortgage and Cummins South Pacific cannot be accepted. The reasoning of Rangiah and Charlesworth JJ in PIA Mortgage was part of the ratio decidendi for the decision in that case, whereas the reasoning of Bromberg J was by way of obiter. It is accordingly not a matter for this Court to choose between two equally available alternatives. In this circumstance, this Court would, in accordance with the principles reviewed and explained by the Chief Justice in FAK19, refrain from applying the approach stated in a decision of a Full Court having precedential effect only if convinced that that approach was “plainly wrong”. That is not a state of satisfaction easily reached.

94 It could be said that the issue does arise with respect to the different approaches in Whelan and PIA Mortgage. However, as already noted, while there is some difference between the principles endorsed by the Full Court in Whelan and the approach of the majority in PIA Mortgage, any difference in the application of those two approaches is unlikely to be significant.

95 It does seem to us, with respect, that, in some of the decisions construing s 341(1)(c), the ability of an employee to make an “inquiry” has not been given the same prominence as has the ability of the employee to make a “complaint”. Section 341(1)(c) should be construed having regard to both limbs. It is not uncommon for instruments, whether they be an industrial award, a collective agreement such as an enterprise agreement, an order of an industrial body, or a contract of employment, to make provision for the making of complaints. It is, however, much less common for instruments of these kinds to make provision for the making of inquiries. This is a matter to which Jessup J referred in Murrihy at [143] (set out above), as did Bromberg J in Cummins South Pacific at [46] (also set out above). It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an “inquiry” in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source. In our view, this may point against a requirement that the ability to make a complaint or inquiry must itself have an instrumental source.

96 Several authorities have emphasised that an object of Div 3 in Pt 3‑11 of the FW Act is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint or inquiry in relation to their employment: Shea v TRUEnergy at [619]; Cummins South Pacific at [14]. As Jessup J noted in Murrihy, the inquiry may involve a request for legal assistance, for example, as to whether an employee is receiving his or her proper entitlements. Such an inquiry may be made to the Fair Work Ombudsman, to the employee’s union, or to a lawyer retained by the employee. It may result in the employee being advised that he or she does have a claimed entitlement, or does not, and in the employee being advised as to the way in which a claim may be pursued. It would be a curious consequence, and seemingly inconsistent with the protection which the FW Act affords to those engaged in the orderly conduct of industrial affairs, if an employee making such an inquiry does not have the protection of s 340 because he or she does not have a right or entitlement, bestowed by a relevant instrument, to make that inquiry.

97 We consider that, irrespective of our own views concerning the proper construction of s 341(1)(c), this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in Whelan. Doing so gives effect to the important principle of comity to which we have referred.

98 As we have indicated, we doubt that the approach preferred by the majority in PIA Mortgage will produce different outcomes in practice than the approach stated in Whelan.

99 It is difficult for this Court to assess whether each of the appellant’s Complaints or Inquiries Nos 4‑6 and 8‑10 are sourced in a right or entitlement in the sense explained in Whelan. Not only does the Court not have findings by the trial Judge as to the relevant instruments, it was not, with one qualification, taken during the submissions to the appellant’s contract of employment, the relevant enterprise agreement and the relevant industrial award. Nor did the Court receive any submissions as to terms which may have been implied into the appellant’s contract of employment arising from her probational status and the requirement that she “attend and complete the NAB Financial Planning Online Induction Course to the required standard”. Nor did the Court receive submissions concerning the implications which may arise from Pt 6‑4B of the FW Act (which authorises the FWC to deal with applications by employees who believe that they have been bullied at work).

100 For these reasons, while we consider that Complaints or Inquiries 1‑3 and 7 are not complaints or inquiries to which s 341(1)(c) refers, we are unable to uphold NAB’s submission that Complaints or Inquiries Nos 4‑6 and 8‑10 were not complaints or inquiries which the appellant was able to make in relation to her employment. Accordingly, Ground 1 of the Notice of Contention could succeed only in part.”

 

Alam v National Australia Bank Ltd [2021] FCAFC 178