Federal Court divided on which ‘complaints’ give rise to unlawful adverse action

The Fair Work Act 2009 (Cth) (‘FW Act’) makes it unlawful for employers to take adverse action, including dismissal, against employees because of various proscribed reasons. One class of proscribed reasons is that an employee has, or exercises, a ‘workplace right’ (s 340). ‘Workplace right’ covers a range of rights outlined in s 341(1). One ‘workplace right’, relied upon in adverse action claims, is that the employee ‘is able to make a complaint or inquiry… in relation to his or her employment’ (s 341(1)(c)(ii)). In other words, ss 340 and 341(1)(c)(ii) combine to prohibit an employer from taking adverse action against an employee because the employee has exercised a workplace right to complain or inquire.

The proper interpretation of that workplace right and, in particular, the meaning of ‘is able to make a complaint’, has been the subject of conflicting views in the Federal Court and the Federal Circuit Court. In PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 (‘PIA’), the Full Court held that ‘able to make a complaint’ means a complaint must be sourced in a right or entitlement to complain. That more restrictive interpretation has now been rejected by Bromberg J (Mortimer J agreeing) in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 (‘Keenan’). According to their Honours, the provision is enlivened by any complaint or inquiry made by an employee in relation to his or her employment, and there is no additional requirement that a complaint be sourced in a right or entitlement to complain.