Workplace rights defined for general protections

For some time now, there has been a judicial controversy in the Federal Court of Australia about the level of formality, and the source of, a workplace right for the purposes of the general protections. Here is an extract from the recent judgement of a very senior judge about it. It is very interesting.

“WERE COMPLAINTS” WITHIN THE MEANING OF SECTION 341(1)(C)(II) MADE BY MR KEENAN?

7    The first and second grounds of appeal challenge the primary judge’s findings that s 340(1) was contravened. Those grounds are confined to the first to fourth complaints. Cummins asserted that those complaints did not constitute the exercise of a “workplace right” by Mr Keenan within the meaning of s 341(1)(c)(ii) of the FW Act. There are two separate bases for that assertion. First, that the complaints were not founded in or upon a source of entitlement as the phrase “able to make a complaint” (s 341(1)(c)(ii)) requires. Second, that each of the complaints were not a “complaint” within the meaning of that expression in s 341(1)(c)(ii).

Was Mr Keenan “able to make a complaint”?

8    On this issue and several other issues later addressed, the task with which I am confronted is largely that of statutory construction. That task requires the attribution of legal meaning to statutory text: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 at [65] (Gageler and Keane JJ). It is a task which requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] (McHugh, Gummow, Kirby and Hayne JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20] (Kiefel CJ, Bell and Nettle JJ). Context includes legislative history and extrinsic materials: Thiess v Collector of Customs (2014) 250 CLR 664 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ). Legislative history may, and in this case does, provide a contextual aid. Extrinsic material such as the Explanatory Memorandum to the Fair Work Bill 2008 (“Explanatory Memorandum”) is also of assistance.

9    In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ emphasised that text, context and purpose must be construed together, saying at [14] (references omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

10    Before I turn to consider s 341(1)(c) specifically, including by reference to its text, legislative context, legislative history and purpose, it is helpful that I briefly outline the central provisions most relevant to the constructional exercise I need to perform.

11    Part 3-1 of the FW Act is headed “General Protections” and has five Divisions. The operative prohibition in Div 3 is set out in s 340(1) which relevantly provides that “[a] person must not take adverse action against another person because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right”. The meaning of the statutory expression “adverse action” is given in s 342. The meaning of the statutory expression “workplace right” is given by s 341. It is necessary to set out the first two sub-sections of s 341 in full:

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee–in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a)    a conference conducted or hearing held by the FWC;

(b)    court proceedings under a workplace law or workplace instrument;

(c)    protected industrial action;

(d)    a protected action ballot;

(e)    making, varying or terminating an enterprise agreement;

(f)    appointing, or terminating the appointment of, a bargaining representative;

(g)    making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h)    agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i)    making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j)    dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k)     any other process or proceedings under a workplace law or workplace instrument.

12    The nexus in s 340(1) between the prohibition on taking adverse action and the holding or exercise of a “workplace right” is found in the word “because”. As is well demonstrated by the authorities, that nexus will be established, and therefore s 340(1) will be contravened, where the holding or exercise by a person of a “workplace right” is a substantial and operative reason for the adverse action taken against that person: Short v Ambulance Victoria [2015] FCAFC 55 at [55] (Dowsett, Bromberg and Murphy JJ).

13    The natural meaning of the term “complaint” in the context in which it is used in s 341(1)(c) connotes an expression of discontent which seeks consideration, redress or relief from a matter in relation to which the complainant is aggrieved. A complaint is more than a mere request for assistance and must state a particular grievance or finding of fault: Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 at [579]-[581] (Dodds-Streeton J) and the authorities there cited. Whether an employee has made a complaint is a matter of substance, not form, and is to be determined in light of all the relevant circumstances, it being only necessary that the relevant communication, whatever its form, is “reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint”: Shea at [626]-[627] (Dodds-Streeton J).

14    As Dodds-Streeton J observed in Shea at [619], the relevant object of s 340 (in combination with s 341(1)(c)) “is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint in relation to their employment”. The protection from retribution is not a protection provided for any and all complaints. What is protected is the right of an employee to complain about the employee’s employment and the matters that relate to it. That seems to be based on the rationale that an employee should be entitled to advocate in support of her or his interests in the employment without fear of retribution for having raised those interests with her or his employer or another person or body to whom the employee has turned for assistance.

15    On many of the principles arising from Shea in relation to what constitutes a complaint within the meaning of s 341(1)(c), I respectfully agree with the observations made by Dodds-Streeton J. There is however one aspect of the reasoning in Shea that I respectfully consider to be problematic. In Shea at [625] and by reference to s 341(1)(c)(ii) of the FW Act, Dodds-Streeton J held (emphasis added):

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.

16    In providing a summary of that holding at [29], Dodds-Streeton J said:

(f)    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;

17    Those observations, although variously interpreted, have been followed by a number of authorities to which I will return. It is convenient, however, to identify now the two different and contradictory ways in which the principle emanating from those observations has been construed by those authorities. The first interpretation is that for a complaint to fall within the scope of s 341(1)(c), there must be a right or entitlement held by the employee to make the complaint. In other words, the complaint must be sourced in a right or entitlement to complain held by the employee. That view seems to flow from what Dodds-Streeton J said at [625]. The second way in which the observations of Dodds-Streeton J have been interpreted by later authority is that the making of a complaint need not be sourced in a right or entitlement to do so but that the complaint must be about a right or entitlement of the employee. Some support for that interpretation may be taken from the summary given by Dodds-Streeton J at [29] of Shea. Arguably, the words “founded on a source of entitlement” could have been intended to mean that the subject matter of the complaint must be a right or entitlement held by the employee. However, if that were so, the summary of the principle given by Dodds-Streeton J would seem to be out of accord with the observations which it purports to summarise. Further, the way in which Dodds-Streeton J applied the principle to the particular complaints alleged in Shea tends to support the view that her Honour considered that s 341(1)(c) required that the complaint must be sourced in a right or entitlement to make it: see for example at [651]-[652], [680] and [729]-[730].

18    The observations made by Dodds-Streeton J in Shea are relied upon by Cummins in support of its contention that each of the first four complaints made by Mr Keenan were not capable of constituting a complaint of the kind contemplated by s 341(1)(c)(ii) and that the primary judge erred in not so holding. Relying upon each of the two different interpretations of the observations in Shea, Cummins contended that those complaints were neither sourced in a right or entitlement to complain held by Mr Keenan nor were they complaints about a right or entitlement held by him. Mr Keenan contended that there was nothing in the legislation which supported either of the requirements upon which Cummins relied. He contended that the requirement that a complaint be either sourced in a right or entitlement or about a right or entitlement were the product of a judicial gloss wrongly imposed on the plain language of the provision in question.

19    In my view, for the purposes of s 340(1)(c) of the FW Act, a complaint need not be sourced in the right or entitlement of the employee to make the complaint or be about a right or entitlement held by the employee. The imposition of either limitation is not supported by the text, context or purpose of the provision.

20    The observations made by Dodds-Streeton J command respect. However, I regret to say that I am unable to agree with the construction of s 341(1)(c)(ii) adopted by her Honour in the passages quoted above. Whichever way those observations are understood, her Honour’s construction imposes a substantial limitation on the protections which s 340(1) is intended to provide. As I shall seek to explain, the imposition of either limitation is not supported by the text of s 341(1) or by the purpose of that provision in the longstanding legislative scheme of which it forms part. So much is revealed by the text, context and legislative history, and by the Explanatory Memorandum. The construction adopted by Dodds-Streeton J also narrowly construes a provision which must be beneficially construed: see Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [180] (Bromberg J) and the cases there cited.

21    In the constructional task which needs to be undertaken, it is important that the function of the matters listed in s 341(1), in the scheme for which that provision forms part, be properly appreciated. The matters listed in s 341(1) are central to the prohibition mandated by s 340(1). Section 340(1) of the FW Act is contravened when the person taking the adverse action is actuated by one or other of the circumstances listed in s 341(1). Those circumstances are what I will call the “actuating circumstances”. Their function is to identify the circumstance or reason for the taking of the adverse action which s 340(1) prohibits.

22    That very same function is served by the matters listed in s 347 which is found in Div 4 of Pt 3-1. The operative prohibition in Div 4 is found in s 346 which largely adopts the same structure as s 340(1) and relevantly provides that a person must not take adverse action against another person because the other person (i) engages, has engaged or proposes to engage or (ii) does not engage, has not engaged or proposed to engage, in “industrial activity”. Section 347 provides the list of actuating circumstances. They are there given the statutory description “industrial activity”.

23    A prohibition on adverse action being taken by one person against another where that action is actuated by specified circumstances has existed in federal industrial legislation since its very inception in 1904. A depth of understanding is provided by the legislative history and it ought not to be overlooked. Since 1904, federal industrial legislation has contained a scheme designed to prohibit specified action taken by one person against another by reason of particular actuating circumstances specified by the scheme. The number of those actuating circumstances has grown over time and their nature has varied. Sometimes the actuating circumstance has been an attribute of the person victimised or a status held or an entitlement to something which that person has. Alternatively, the actuating circumstance has been that person’s ability or capacity to do something. At other times the actuating circumstance has been described by reference to a particular activity the person has engaged in or has refused to engage in.

24    The scheme was modest at the outset. Only three actuating circumstances were specified – membership of a union, the holding of an office in a union, and entitlement to the benefit of an industrial agreement or award: s 9(1) of the Conciliation and Arbitration Act 1904 (Cth). In 1914, s 9 of the Conciliation and Arbitration Act was amended to include an activity as an actuating circumstance. The pre-existing actuating circumstances mentioned above were supplemented with the additional prohibition that an employer shall not take specified action against an employee who “has appeared as a witness, or has given any evidence, in a proceeding under this Act”.

25    By November 1988, when the Conciliation and Arbitration Act was replaced by the Industrial Relations Act 1988 (Cth), there were 11 actuating circumstances specified by the prohibition imposed by s 334(1) of that Act, that an employer shall not dismiss, injure or prejudicially alter the position of an employee “because” of the circumstances listed by that provision. By that time, the actuating circumstances included the protected person’s participation in specified processes as well as involvement in industrial activities such as the seeking of better industrial conditions or the refusal to join in industrial action.

26    A very significant extension of the list of actuating circumstances was introduced in 1996 when the Industrial Relations Act became the Workplace Relations Act 1996 (Cth). The scope of the scheme was enlarged so as to capture not only conduct of employers against employees but also conduct by employees, independent contractors and industrial associations taken against an employer as well as action taken by an industrial association against employees and against members of the industrial association (see ss 298N, 298P, 298Q and 298R). In relation to employer conduct, the actuating circumstances were listed in s 298L and were described as “prohibited reasons”.

27    By this time there were 14 actuating circumstances listed in relation to employer conduct. Many of those actuating circumstances were replicated in relation to employee or industrial association conduct, but additional actuating circumstances were included in those categories. Broadly speaking and confining the analysis to employer conduct, there was some expansion in relation to activities such as participation in specified processes and, relevantly to the issue I am addressing, the making of an inquiry or complaint by the protected person. The making of inquiries or complaints has its genesis as an actuating circumstance or “prohibited reason” in s 298L of the Workplace Relations Act (although an earlier but somewhat different iteration is found in s 170DF of the Industrial Relations Act). Section 298L(i) provided for the following “prohibited reason”:

(i)    has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

(i)    compliance with that law; or

(ii)     the observance of a person’s rights under an industrial instrument

28    With the enactment of the FW Act, the scheme was substantially re-organised. The action prohibited to be taken against another person was given the statutory description of “adverse action” and defined in s 342. The actuating circumstances were no longer grouped by reference to the nature of the actor whose conduct was prohibited (ie employer conduct, employee conduct or industrial association conduct) but became grouped by subject matter under the actor-neutral prohibition that “a person must not take adverse action against another person…because” (ss 340(1) and 346).

29    There were two subject matter groupings of actuating circumstances created. The groupings are somewhat arbitrary. They were described in the Explanatory Memorandum [1338] as follows:

The principal protections in Part 3-1 have been divided into protections relating to workplace rights (which can be broadly described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in industrial activities (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association).

30    The Explanatory Memorandum at [1336] also noted that:

The consolidated protections in Part 3-1 are intended to rationalise, but not diminish, existing protections. In some cases, providing general, more rationalised protections has expanded their scope.

31    The observation to be made is that, consistently with the function of each of the paras in s 347, the function of each of the paras of s 341(1) is to describe particular circumstances which will engage the prohibition upon the taking of adverse action where those circumstances actuate the taking of that action. Each of the actuating circumstances described by s 341(1) has been given the statutory descriptor “workplace right”, but that is a statutory construct used to facilitate a particular style of statutory drafting. No legal right or entitlement is conferred by s 341(1), nor is the function of s 341(1) to describe particular legal rights, although in describing actuating circumstances, the holding of a particular legal right may be referred to as a circumstance – an entitlement to the benefit of an industrial instrument being one example. Actuating circumstances with the very same function are, as I have noted, each described in s 347 as “industrial activity”. In s 9 of the Conciliation and Arbitration Act (on or after 1914) each of the actuating circumstances was described as a “circumstance”. The description “prohibited reason” was applied in the drafting of the Workplace Relations Act. A proper understanding of the function of the actuating circumstances listed in s 341(1) should not be distracted by the “workplace rights” label which the legislation has employed to describe them.

32    The next observation that needs to be made is that the actuating circumstances described by s 341(1) are expressed in possessory terms, that is, what “[the protected person] has”. They are not described as activities (as most could have been) but, in para (a), as entitlements or roles or responsibilities held by the protected person and, in paras (b) and (c), as abilities or capacities held by that person, namely, either the ability to “initiate” or “participate” in certain processes or proceedings or, relevantly, the ability to make certain complaints or inquiries.

33    For paras (b) and (c) of s 341(1), the phrase “is able to” is used to identify that the actuating circumstance being there addressed is an ability held by the protected person. The meaning of that phrase throughout s 341(1) must be assumed to be consistent. That the same structure is adopted in both paras (b) and (c) of s 341(1) is instructive.

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.

35    If there is a limitation imposed in paras (b) and (c) of s 341(1), that limitation is to be found in the subject matter of the ability in question. Thus, the text of s 341(1)(b) is to be understood as providing that any limitation on a person’s ability to initiate or participate in the processes or proceedings there referred to (as defined by s 341(2)), is to be found in the process or proceeding in question. To illustrate, if the process was a dispute resolution process provided for by the workplace instrument and that process provided that only a person aggrieved could initiate it, there would for that reason be a limitation imposed as to who “is able to initiate” such a process. It may be that the process in question may require a person to have a right or entitlement to initiate or participate in that process. If that is so, there would be a limitation imposed by reference to the particular right or entitlement.

36    The same structure has been adopted for paragraph (c) of s 341(1). The phrase “is able to” is repeated and the subject of that ability held – a capacity to make a particular kind of complaint or inquiry – is specified. If any limitation is imposed on that ability, the drafting structure adopted suggests again that the limitation is to be found in the subject specified for that ability. For s 341(1)(c)(i) any limitation that applies will be found in the processes of the particular “person or body having the capacity under a workplace law to seek compliance with that law or workplace instrument”. The remit or the area of activity of such a person or body may impose the limitation. It may be, for instance, that a body such as a regulator for a particular industry will only receive complaints from participants within the industry that the regulator is authorised to regulate.

37    Turning then to s 341(1)(c)(ii), a limitation is found at the outset – the ability to complain or inquire is limited to a person who is an employee. There is no other limitation upon the ability there dealt with which is discernible from the text of that provision. It is possible that because the complaint or inquiry must be made in relation to the particular employment of the employee, some limitation may arise out of that particular employment. However, that seems unlikely, and it appears that it was that very unlikeliness of the existence of any further limitation that drove Dodds-Streeton J to imply a limitation. Her Honour’s reasoning is confined to the following two sentences at [625], set out again for convenience:

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.

38    With respect, there are a number of difficulties with that reasoning and I will deal, in turn, with each of the two interpretations that later authorities suggest were intended by Dodds-Streeton J commencing first with the limitation that, to be a complaint or inquiry within the scope of s 341(1)(c), the complaint or inquiry must concern or be about a right or entitlement held by the employee. That limitation is a limitation on the subject matter of the complaint or inquiry which an employee is able to make. But it is not open to imply a limitation upon that subject matter where the provision has expressly specified that limitation. The subject matter of the complaint or inquiry is specified in s 341(1)(c)(ii) in the phrase “in relation to his or her employment”. That is the requisite subject matter of the complaint or inquiry and, in turn, of the ability to do so with which that provision is concerned.

39    As I said in Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456 at [41], the words “in relation to” are words of wide import. It is the nature and purpose of s 341(1)(c) which informs the relationship or the requisite nexus between the “complaint” and the “employment” for which the words “in relation to” provide: see Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [63]-[64] (Katzmann J); Walsh at [41] and Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [68]-[69] (Mortimer J).

40    Within the limit there identified for the phrase “in relation to”, complaints or inquiries in relation to an employee’s employment cover a broad field. On the plain language of s 341(1)(c)(ii), “in relation to his or her employment” is a far broader field than the available field if the provision had said “about his or her rights or entitlements” in the employment. The adoption of the view that for a complaint or an inquiry to fall within the scope of s 341(1)(c)(ii) it must be concerned with a right or entitlement of the employee would essentially re-write the subject matter of a complaint or inquiry to which s 341(1)(c)(ii) plainly refers.

41    That departure from the plain language of the provision finds no support. It is not only at odds with the plain words of the provision but also ignores its structure. The subject matter of a complaint or inquiry is dealt with expressly in sub-para (ii) of s 341(1)(c). The opening words “is able to” cannot be understood as also impliedly addressing that subject matter and, in so doing, overriding the express language of sub-para (ii).

42    Further, there is no purposive basis revealed either by context, legislative history or the Explanatory Memorandum to support any departure from the express words that address the subject matter of the requisite ability to complain or inquire.

43    It can readily be appreciated that an employee’s dissatisfaction about an existing entitlement may actuate retribution. But dissatisfaction with a lack of an entitlement is equally capable of actuating retribution. Why would it be that Parliament intended that an employee dismissed for complaining about her existing rate of pay should have a remedy, but an employee dismissed for complaining about her lack of any entitlement to work at home should not? In an employment relationship the potential for dissatisfaction is broad. It is not confined to dissatisfaction over rights or entitlements. It may extend to dissatisfaction over a lack of a right or entitlement and may also relate to a wide range of existing conditions which are not able to be characterised as rights or entitlements. To illustrate from actual circumstance raised in the cases (for example Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859), would dissatisfaction about the lack of a female dedicated toilet on a building site employing a single female employee but otherwise dominated by male employees, be a complaint about a right or entitlement?

44    True it is that “in relation to his or her employment” gives rise to a wide field of potential dissatisfactions that may fall within the scope of the protection provided for by the scheme in question. However, to my mind, that has been deliberately provided for in recognition of the fact that dissatisfaction in respect of a wide range of matters relating to employment may actuate the behaviour that the FW Act seeks to prohibit. 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. There is nothing in the inherent features of those activities which suggests that the draftsperson sought to limit the protective reach of s 340(1) so that only adverse action taken because of a right or entitlement to inquire or complain is prohibited. Nor is there any discernible basis for thinking that, in providing the protection of s 340(1), the framers of the legislation sought to distinguish between an ability to complain or inquire as of right and an ability to complain or inquire absent some legal right or entitlement to do so. What policy or purpose can be discerned to justify that distinction? If the purpose of the provision is to facilitate the making of complaints or inquiries without fear of retribution, as I consider it is, why would it matter whether the complaint or inquiry is sourced in a particular right or entitlement? It is the protected person’s ability or capacity to inquire or complain, not some legal right or entitlement to do so, which is the subject of the protective intent of the scheme. To my mind, when s 341(1)(b) and (c) are construed by reference to their text and purpose, with a proper appreciation of their function undistracted by the “workplace right” label which has been assigned to the actuating circumstances described in s 341(1), that conclusion is crystal clear.

47    The correctness of that conclusion is supported by the Explanatory Memorandum, which states at [1370] that subpara 341(1)(c)(ii) of the Fair Work Bill 2008 (emphasis added) “specifically protects an employee who makes any inquiry or complaint in relation to his or her employment”, and that it would “include situations where an employee makes an inquiry or complaint to his or her employer”. This suggests that the legislature intended that the only limitation on the protection of complaints and inquiries would be that the subject matter of the complaint or inquiry be “in relation to [the employee’s] employment”.

48    The illustrative examples which follow [1370] include:

an employee who makes a complaint to her employer about safety concerns;

an employee who is dismissed for approaching his union for assistance with calculating his overtime entitlements; and

an employee who erroneously complains to the Australian Competition and Consumer Commission in respect of an underpayment claim.

49    There is no suggestion in the examples given that the inquiries or complaints exemplified must be underpinned by some right or entitlement. Nor, given the nature of the examples given, is there a basis for thinking that there would be a right or entitlement necessary to enable such a complaint or inquiry to be made. They are simply examples of complaints or inquiries that employees are able to make about their employment.

50    One illustration of the limitation that would be imposed if the construction adopted in Shea is correct, concerns the protection intended for persons who participate in proceedings under a workplace law or workplace instrument (see s 341(2)(b)). As referred to above, protection of that kind has existed in predecessor provisions to the current provision since 1914 where s 9 of the Conciliation and Arbitration Act prohibited action taken against an employee because the employee appeared as a witness or gave evidence in a proceeding under that Act. That is an important protection. One can readily understand why it was thought necessary to provide an employee who may be called as a witness against his or her employer the comfort of knowing that it would be unlawful for the employer to penalise the employee for that reason. However, a witness does not participate in a court or like proceeding as of right or by reason of some entitlement. To the contrary, the participation of a witness may be compelled. If the ability to participate in a proceeding of the kind referred to by s 341(1)(b) of the FW Act is confined to an ability as of right or because of some legal entitlement, as the construction arguably adopted in Shea applied consistently across paras (b) and (c) of s 341(1) would hold, the protection that federal industrial relations legislation has provided to employee witnesses for nearly a century was reversed with the enactment of the FW Act. In the absence of clear language, I would not ascribe such an intent to Parliament.

51    The next matter of some importance is that the observations in Shea are in conflict with the judgment of Jessup J in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 which preceded it. In that case Jessup J held that Ms Murrihy’s employer had contravened s 340(1)(a)(iii) of the FW Act because, in response to Ms Murrihy’s proposal that she would seek legal advice in relation to her employment, her employer took “adverse action” against her by threatening to dismiss her from her employment.

52    In Murrihy, Jessup J considered that s 341(1)(c)(ii) was drafted in “wide terms” (at [143]) and that there was “little doubt but that the provision was intended to mean what it says” (at [141]). In adopting a literal reading of the provision, Jessup J rejected any implication that the provision did not extend to cover a complaint or inquiry made by an employee to his or her employer (at [141]); accepted that the seeking of legal advice fell within “the connotation of a complaint or inquiry”; and his Honour’s conclusion at [143] can only be understood as the wholesale rejection of the employer’s contention (outlined at [140]) that s 341(1)(c) is only invoked where the complaint or inquiry is underpinned by “some [statutory, regulatory or contractual] provision for the making of a complaint or inquiry”.

53    In Shea, Dodds-Streeton J (at [594]) suggested that the reasoning of Jessup J “appeared to assume the existence of an entitlement or right under an instrument”. With respect to her Honour, I can find no such suggestion in the reasoning to which her Honour referred. At [143], Jessup J made the general observation that it should not be assumed that an unrepresented employee with legal rights (as distinct from an employee who is a member of a union) was not within the scheme’s protective intent in relation to the making of complaints or inquiries. There is nothing in that passing reference to an employee’s legal rights to suggest that his Honour was satisfied that Ms Murrihy had a legal right to make an inquiry of her solicitor. The very notion that Ms Murrihy had, or needed to have, a legal right or entitlement to make an inquiry about her employment with her solicitor is simply absurd. The facts of Murrihy illustrate well that it is highly unlikely that s 341(1)(c) of the FW Act was intended to require the employee to have a right or entitlement to complaint or inquire in order for the employee to take the benefit of the protective reach of s 341(1)(c).

54    The observations made in Shea were then considered by Judge Manousaridis in Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923 and, in a careful survey of the relevant authorities then available, Judge Manousaridis appreciated that Murrihy involved a rejection of the proposition that the expression in s 341(1)(c) “is able to” requires a complaint or inquiry to be grounded in some source of legal entitlement whether contractual or in an industrial instrument or a statute (at [65]). His Honour expressed apparent disagreement with the observations made by Dodds-Streeton J in Shea (at [69]) and made the observation (at [73]) that “the construction favoured by Dodds-Streeton J in Shea does not reflect any settled construction in the Federal Court or elsewhere of the words ‘is able’ in s 341(1)(c)(ii) of the [FW Act]”. His Honour concluded (at [77]) that a workplace right within the meaning of s 341(1)(c)(ii) was a “capacity or capability to make a complaint or inquiry”, having made the observation (at [74]) that:

It is difficult to imagine that Parliament would have required that there exist some express contractual, statutory or instrumental provision entitling an employee to do that which he or she would already be entitled to do before it could be said that the employee is able to make a complaint or an inquiry.

55    In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, Collier J held that s 340(1) was contravened because adverse action had been taken against Mr Whelan for reasons including that he had made inquiries or complaints. Those inquiries or complaints were described as “concerning his entitlement to be paid a bonus or the formulation of a bonus plan by [his employer]” (at [40]). It is not apparent from the reasons of Collier J that her Honour either considered or made any findings to the effect that Mr Whelan had any right or entitlement to make an inquiry or complaint about any entitlement to be paid a bonus or the formation of a bonus plan. It is also not apparent from her Honour’s reasons that the proper construction of s 341(1)(c) in the respect in which it is here being dealt with, was in issue in that case.

56    Beyond the absence of any consideration or finding that Mr Whelan had a right or entitlement to make an inquiry or complaint in the context of her Honour holding that an inquiry or complaint within the scope of s 341(1)(c) had been made by Mr Whelan, there are two observations made by Collier J which may throw some light upon how her Honour may be said to have relevantly construed s 341(1)(c). At [50], her Honour said that Mr Whelan’s “entitlement or otherwise” to a bonus was “irrelevant to the question whether he actually made a complaint or inquiry in relation to his employment for the purposes of s 341(c)(ii)”. At [33] and [34], Collier J said this:

[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) 242 IR 1 (Shea), Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) (2014) 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh at [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.

57    There is at [33] a reference made to what Dodds-Streeton J observed in Shea. It appears from the language employed by Collier J that this was a reference to the summary observation at (f) of [29] of Shea. Grammatically, [33] of Whelan including the reference there made to Shea in the last sentence, reads as though the whole paragraph was relied upon merely to support the proposition that s 341(c)(ii) has been “interpreted broadly”. It is, however, likely that Collier J intended to endorse the holding of Dodds-Streeton J in Shea. Her Honour’s implicit reliance on the summary at (f) of [29] of Shea and the content of her Honour’s reasons at [34] suggests (although it is far from clear) that her Honour was endorsing the view that for a complaint or inquiry to fall within the scope of s 341(1)(c)(ii) of the FW Act, it has to be about a right or entitlement of the employee.

58    If that was the nature of the endorsement, whilst the endorsement was not obiter, it was not a clear endorsement and I think it is fair to say that, in circumstances where the point was not in apparent contest before Collier J, the endorsement was not based on a considered analysis of the meaning and intent of s 341(1)(c)(ii).

59    Paragraphs [33] and [34] of Whelan were then reproduced in the reasons for judgment of the Full Court (Cigarette & Giftware House Pty Ltd v Whelan (2019) 268 FCR 46) on the appeal of Whelan. In so doing and at [28] Greenwood, Logan and Derrington JJ said that the discussion of Collier J at [33]-[34] of Whelan was “unremarkable and correct”. Again, whilst not obiter, I would respectfully regard that observation as a passing endorsement unassisted by a considered analysis of what s 341(1)(c)(ii) provides. The nature of that endorsement is also clouded by the fact that the nature of the endorsement made by Collier J of Shea is not clear.

60    That the principle from Shea and its consequent endorsement in Whelan and in Cigarette & Gift Warehouse suffers from a lack of clarity may well explain why a recent Full Court (Rangiah, Charlesworth and Snaden JJ) in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 split on the issue of how the observations made in Shea are to be understood.

61    It is convenient to consider the dissenting judgment of Snaden J first. His Honour concluded that neither of the two complaints or inquiries made by Mr King were complaints or inquiries that Mr King was “able to make” within the meaning of that phrase in s 341(1)(c) of the FW Act. Snaden J reasoned that in order to ascertain whether, by making the inquiries or complaints, Mr King “should be understood to have exercised a workplace right, attention should turn first to whether he possessed a right to do so” (at [160]). His Honour couched the question arising from the phrase “is able to make” in s 341(1)(c) as “was Mr King endowed with an ability to make a complaint or inquiry” (at [161]) concerning the subjects to which complaints or inquiries were directed. To be so “endowed”, Snaden J reasoned that Mr King had to demonstrate that he possessed an “identifiable entitlement or right” to complain or inquire as he did (at [165] and [166]). At [168] his Honour stated (emphasis in original):

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.

62    Those observations were made on the basis that the observations made by Dodds-Streeton J in Shea were a correct statement of the law (at [174]). In identifying what his Honour thought distinguished his approach from that taken by the majority in PIA, Snaden J said this (at [172], emphasis in original):

In Shea, Dodds-Streeton J did not conclude that a complaint would qualify as one that an employee was “able to make” if it was founded upon a source of entitlement, instrumental or otherwise. Her Honour’s conclusion was that it was the ability to complain that required that foundation, not the subject matter of the complaint itself. With respect to those who think otherwise, I discern no ambiguity in that conclusion. It was, and remains, consistent with the language of s 341(1)(c) of the FW Act (which, of course, speaks of complaints or inquiries that a person is “able to make”).

63    That observation may, however, overstate the difference between Snaden J and the majority. At [11], the majority (Rangiah and Charlesworth JJ) endorsed the observations made in Shea which are extracted above at [15]. Their Honours (at [13]) considered that Dodds-Streeton J had stated that the word “able” referred to an entitlement or a right and agreed that it did. They considered that the meaning of the statement made by Dodds-Streeton J that a complaint “must be underpinned by an entitlement or right to make a complaint” (emphasis in original) was ambiguous. Their Honours identified two alternative meanings available – first that there must be an entitlement or right to make the complaint or, alternatively, that the complaint must concern an entitlement or right. Their Honours preferred the former meaning (at [13]). It appears that their Honours preferred the former interpretation but with the significant qualification that the entitlement or right to complain did not need to arise under the employee’s contract of employment but could arise under the general law (at [18]) or under a statute whether or not the statute directly conferred a right to complain (at [26]).

64    There is in the majority’s view in PIA a significant relaxation of, but not a rejection of, a construction of s 341(1)(c)(ii) which requires that the ability to make an inquiry or complaint must be underpinned by a right or entitlement to do so. With great respect I disagree with that holding. For the reasons expressed above, there is no textual or contextual basis for construing s 341(1)(c)(ii) as requiring a complaint or inquiry to be underpinned by a right or entitlement to make it, whether sourced in the employee’s contract or sourced elsewhere.

65    For completeness, I should note that in three separate judgments, Steward J has had cause to consider the observations made in Shea. In The Environmental Group Ltd v Bowd [2019] FCA 951,  Steward J considered that despite the observations of Jessup J in Murrihy, he was bound to follow the observations in Shea as applied in Cigarette & Gift Warehouse considering that the Full Court in Cigarette & Gift Warehouse had confirmed that a complaint must be founded in some entitlement or right to make it (see at [128]). In Maric v Ericsson Australia Pty Ltd [2020] FCA 452, a judgment delivered after PIA was published, Steward J (at [50]-[55]) stated that he did not understand that the majority in PIA had jettisoned the proposition that a complaint had to be based upon a right or entitlement to make it. His Honour held at [55] that “[f]or 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]”. Most recently, in Flageul v WeDrive Pty Ltd [2020] FCA 1666, Steward J repeated his comments at [55] of Maric in respect of inquiries (at [273]) and said that the same observation applies to the making of complaints, citing again PIA at [14] (at [274]).

66    It is, I think, apparent that the meaning of s 341(1)(c)(ii) as described by prior authority, is clouded. There is uncertainty as to how the observations in Shea are to be understood. In my respectful view that uncertainty is largely the product of competing views as to which interpretation of the holding in Shea should be preferred in circumstances where those observations are not an appropriate starting point for an analysis of the proper construction of s 341(1)(c)(ii). That is because, for the reasons given, neither interpretation of the holding in Shea is supported by the text, context or purpose of s 341(1)(c)(ii) of the FW Act.

67    Although I respectfully disagree with the holding of the majority in PIA, this Full Court need not decline to follow that holding because it is not necessary to do so for the disposition of the appeal. For the reasons to which I will shortly turn, the appeal should be allowed on other grounds. If it had 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.

68    If it had been necessary to decide the issue, I would have determined that, insofar as the primary judge failed to apply a requirement that the first to fourth complaints be either sourced in or be about a right or entitlement of Mr Keenan, the primary judge did not err.”

 

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 delivered 24 November 2020 per Bromberg J