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Workplace law special edition: Employee protection: Workers more generally protected

Workplace law special edition: Employee protection: Workers more  generally protected

By Angus MacKenzie

Workplace 

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Recent Full Court decisions bring the operation of the Fair Work Act's narrow ‘complaints and inquiries’ protection closer than it has been in years to its purpose – protecting employees from retribution.

Snapshot
  • To date, complaints and inquiries were understood not be protected under s340 of the FW Act unless the worker had a right or entitlement to complain. 
  • Majority obiter in Keenan indicates that s340 may not be so narrow, and that it might extend to complaints that are not underpinned by strict legal rights, or complaints about the absence of rights. 
  • Having now been accepted by a subsequent Full Court, it represents the most encouraging development in the general protections jurisdiction in recent times.

In the wake of the #MeToo and BLM movements, and with the return to in-person working, it is now more important than ever that workers who make complaints are protected from retribution. The Fair Work Act 2009 (Cth) (FW Act) protects workers who make complaints – but what kind of complaints are protected?1

Section 340 of the FW Act, among other things, protects employees against retribution from their employers for making complaints or inquiries in relation to their employment. It is one of the most litigated sections of the Act. To date, the protection has been narrowly interpreted. But Full Court obiter in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 (Keenan) indicates a departure from the widely held view embodied in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (Shea). Now accepted by a subsequent Full Court, the departure represents a rare expansion of the protections available to employees who make complaints or inquiries at work. They open up a range of claims for employees who make complaints or inquiries at work that was previously unavailable.

Complaints and inquiries

Section 340 protects workplace rights. It is one of the “general protections” provisions which prohibit certain persons from taking adverse action against other persons because of specified prohibited reasons. 

Within this scheme, s340 prohibits an employer from taking adverse action against an employee because they have a workplace right. Workplace right is defined in s341. An employee has a workplace right, relevantly, if they are “able to make a complaint or inquiry” in relation to their employment. Adverse action is also defined by s342 to encompass a wide range of conduct, including dismissal.

The purpose of s340 is to allow an employee to advocate in support of their interests in employment without fear of retribution for having raised those interests.2 For example, an employer who dismisses an employee for complaining about being underpaid could breach s340. If they do, the employer may be required to reinstate the employee, pay compensation and/or pay pecuniary penalties. 

But recent decisions have made important changes to the kinds of complaints that matter for the purposes of s340. 

Underpinned by an entitlement or right

Until recently, most views of the Court hinged on the words “is able to” in the s341 definition of “workplace right”. Even more specifically, the recent debate has focused on differing interpretations of Dodds-Streeton J’s statement concerning those words in Shea. Dodds-Streeton J said: 

“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”.

That statement raises several further questions. What does it mean for the ability to complain to be "underpinned” by an entitlement or right? Is it the subject matter of the complaint that must be underpinned by the right, or the right to complain? 

Statements in the rest of Dodds-Streeton J’s decision in Shea are inconclusive on those questions.4 And it was by no means the only view of the Court at the time.

But, until Keenan, the weight of recent decisions favoured the view that, to qualify as a complaint under s340, an employee needed to have a right or entitlement to complain.6 That is, it isn’t enough for an employee to complain about a right or entitlement. The employee must have a right or entitlement to make the complaint itself.

That is the starting point for the decision in Keenan

Rights to complain

Within the view that an employee needs a right to complain for a complaint to count under s340, two schools emerged. They came to a head in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 (King). 

Mr King made two complaints. The first was that he was entitled under the employment contract to be retained for five years, or to payment in lieu for that period, but received neither. The second was that he had been misled about the problems with the business in breach of the Australian Consumer Law. Mr King made the complaints in an email to his employer, and in a letter from his solicitors to the employer. He did not commence any proceedings under the contract or the Australian Consumer Law. 

Mr King claimed he was dismissed because of the complaints. The issue of whether the complaints counted for the purposes of s340 split the Court.

Snaden J’s reasons embody the first (narrow) view. On that view, a complaint is only protected if it is made pursuant to a right or entitlement to complain. For example, an employee may have a right to complain about an allowance under the dispute settlement procedure set out in a modern award. If the employee follows the process set out in the award and makes a complaint, but is demoted for doing so, they will have made a protected complaint and the demotion will be a breach of s340.

This is the narrowest of the three approaches. It only covers complaints made in the way in which the employee had a right to complain. So, in the example above, it will not be enough for the employee to foreshadow a complaint under the award. Unless the complaint is made as required by the award, it is unprotected. That leaves an employee who makes informal complaints without protection. 

In King, the majority judges, Rangiah and Charlesworth JJ, rejected this first (narrow) view in favour of the second (broad) view. On the second view, an employee must have a right to complain to get the protection of s340. But the right to complain need not be exercised for the complaint to be protected. For example, an employee’s complaining about a contractual underpayment will be sufficient for the complaint to be protected. They need not sue under the contract. 

The difference between the two views was important in the result. 

On the first (narrow) view, because he never invoked his right to sue, Mr King’s complaints weren’t protected.7 The complaints he made were not ones he was “able to make” in the Shea sense. Snaden J held that it is only when an employee exercises a right or entitlement to complain, that they have made a complaint underpinned by a right or entitlement.8 Only when the complaint made is the complaint that the employee had a right or entitlement to make, will it be protected by s340. 

On the second (broad) view, the complaints were protected. Mr King had a right to sue for a breach of the contract (though he never exercised it). And he had a right to sue under the Australian Consumer Law (though again, he never did). The complaints he made, the majority concluded, were ones he was able to make in the Shea sense, and protected. 

On that basis, the employer was found to have contravened s340 and its appeal was dismissed. 

The third view

The decision in King opened the door to a range of claims that were barred by the first (narrow) view. 

But it is not the end of the story. In Keenan, Bromberg and Mortimer JJ considered the scope of the protection and reached a third, broader view of the protection. 

In that case, the primary judge fell into error by not separately considering whether each complaint alleged was a reason for each kind of adverse action alleged.9 That error was sufficient for the Court to uphold the appeal, so the facts are not presently relevant. 

But the majority went a step further. Their Honours considered the scope of s340 and landed on the third view of the protection. That view was wider still than the second (broad) view expressed by the majority in King.

There is, the Keenan majority held, no need for a complaint to be underpinned by a right or entitlement at all.10 Rather, on a proper construction of the statute, complaints are protected subject only to two limitations. First, they must be made by employees. Second, (possibly) they must be complaints in relation to the particular employment of the employee.11 

So if the third view begins with a rejection of King, it ends with a rejection of Shea

But what does that mean? There are several upshots. 

First, it means that informal complaints made about matters that do not squarely line up with rights and entitlements can still be protected. Mr Keenan, for example, complained to his colleagues in a bar. It would be difficult to point to a statutory right or entitlement to make complaints to colleagues in bars.

On the third (broader) view, such a complaint could be protected.12

It also means a complaint about a lack of an avenue for redress could be protected. For example, an employee might complain that the employer doesn’t have a policy on flexible working arrangements. On the first (narrow) view or the second (broad) view, the complaint would be unprotected. 

Only on the third (broader) view would such a complaint be protected. 

Where to from here? 

The third view was expressed in Keenan only in obiter. 

But very recently the Full Court was called on to consider the question again in an interlocutory appeal – Sabapathy v Jetstar Airways [2021] FCAFC 25 (Sabapathy). In considering whether the applicant had a reasonable prospect of success against several defendants, Logan and Katzmann JJ held that the definition of workplace right required a “broad interpretation” consistent with the majority reasons in Keenan.13 In separate reasons, Flick J agreed.14 

So the majority view in Keenan is now binding authority. For the first time in years, employees who make informal complaints, or complaints about rights or entitlements they seek but do not have, can have confidence that s340 protects them against retribution for making those complaints. 

If we accept the majority’s view in Keenan that the purpose of s340 is to allow an employee to advocate in support of their interests in employment without fear of retribution for having raised those interests, this development also brings the operation of that provision closer to what it was always intended to do. ■


Angus Mackenzie is an associate in the employment and industrial law section of Maurice Blackburn Lawyers.

  1. Section numbers in the body of the article refer to the Fair Work Act 2009 (Cth) unless otherwise specified. 
  2. Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [14]. 
  3. Note 2 above, at [625]. 
  4. See Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [29]. Cf [651]–[652], [680] and [729]–[730].
  5. See, eg, Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, at [140]–[144], where Jessup J held that a complaint or inquiry about “rights arising under federal industrial legislation” would be protected under s340, though it was unclear whether the rights were necessary for the complaint to be protected. 
  6. See, eg, Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] 268 FCR 46; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, [14] and [17]. Cf [168]. See also, The Environmental Group v Bowd [2019] FCA 951, at [129]; Maric v Ericsson Australia Pty Ltd [2020] FCA 452. 
  7. PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [166], [168] and [175]. 
  8. Note 7 above, at [166] and [168].
  9. Note 2 above, at [112], [207] and [216].
  10. Note 2 above, at [64]. It is at least arguable that the third view is the same as that expressed in Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, at [143]. But see the disagreement discussed in Keenan, at [53]–[60] and [66]. The question is clouded. 
  11. Note 2 above, at [37].
  12. Note 2 above, at [71].
  13. Sabapathy v Jetstar Airways [2021] FCAFC 25, at [57].
  14. Note 13 above, at [90].

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