This is an extract from a recent appeal to the Federal Court which contains some comments by the appeal judge about the formality required or not required to constitute a workplace right.
“134 The primary judge’s reasoning, set out at [61] – [65] is somewhat condensed. I understand his Honour to have accepted submissions made by the respondents that the only right identified in Mr Wu’s application that was capable of being a “workplace right” as defined in s 341 was the right to make complaints or inquiries (at [62]) and that Mr Wu’s refusal to undertake on-call duties was not a complaint or inquiry in this regard. His Honour also made a separate finding that Mr Wu did not request the use of an arbiter (but merely suggested that as a possibility during the meeting on 14 December 2021).
135 This reasoning is understandable in the light of the way a “workplace right” is defined in s 341 of the FW Act. Aside from the ability to make a complaint or inquiry concerning one’s work (s 341(1)(c)), workplace rights are defined as entitlements under specific legislative regimes. Mr Wu had not identified the statutory sources of the rights upon which he was relying as “workplace rights”. Although it has been observed in the Circuit Court that an applicant is not required to “precisely and explicitly identify a source of entitlement in a workplace law or instrument” (Lees v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766 at [93]), it remains the case that Mr Wu bore the burden of establishing that he had, and exercised, rights which were “workplace rights” as defined. It was necessary for him to show that the rights upon which he relied had a basis in a workplace instrument or a workplace law. Cases where this can be done without identifying the relevant instrument or law will be rare.”
Wu v DSMJ Pty Ltd (No 2) [2024] FCA 1404 per KENNETT J delivered 6 December 2024