A Full Federal Court has clarified when an employee is able to make a complaint or inquiry in relation to their employment within the definition of “workplace right” under the Fair Work Act 2009 (Cth) (FW Act), a topic that has been the subject of divergent views in earlier cases.
The full court followed Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 (Whelan) in which the court accepted the statement of Collier J at first instance that, for the purpose of s 341(c)(ii) of the FW Act, “a complaint that an employee is able to make in relation to his or her employment is not at large, and must be founded on a source of entitlement, whether instrumental or otherwise”.
The full court chose to follow Whelan over the later decision of PIA Mortgage Services Pty Ltd v King (2020) 72 AILR ¶103-162; [2020] FCAFC 15 (PIA Mortgage) after identifying a minor difference in the reasoning between the 2 cases. Whereas Whelan had not required that the right or entitlement to make a complaint or inquiry itself have an instrumental source, that was the construction preferred in PIA Mortgage, albeit with an expansive view of the circumstances in which that right or entitlement may be found. The full court found that this difference may have little significance in practice.
The full court rejected the argument that it needed to choose between the approach in PIA Mortgage and the later decision of Cummins South Pacific Pty Ltd v Keenan (2020) 72 AILR ¶103-254; [2020] FCAFC 204 (Cummins) in which Bromberg J stated that, had it been necessary to do so, his Honour would have declined to follow PIA Mortgage as being plainly wrong. The reasoning in PIA Mortgage was part of the ratio decidendi, while the reasoning in Cummins was in obiter.
In following Whelan instead of PIA Mortgage, the full court has taken a different approach to various first instance judgments which have generally considered PIA Mortgage to be binding.
Source: Alam v National Australia Bank Ltd [2021] FCAFC 178, 8 October 2021.
