By Kelly Godfrey

Under the Fair Work Act 2009 (Cth) (FW Act), there is a prohibition against an employer taking adverse action because an employee exercises a workplace right. Under section 341(1)(c)(ii) of the FW Act, a workplace right includes the ability for an employee to make a complaint or enquiry about their employment.

As a result of two inconsistent Full Federal Court decisions, there is now confusion as to what constitutes a valid workplace right for the purposes of bringing a general protections claim.

In PIA Mortgage Services Pty Ltd v King (2020) (PIA v King), the Full Federal Court found that an employee’s workplace right under section 341(1)(c)(ii) of the FW Act had to be underpinned by an entitlement or right to make a complaint or enquiry, such as under a contract, award or legislation. In addition, the complaint or enquiry must be made in good faith and for a proper purpose.

In Cummins South Pacific Pty Ltd v Keenan (2020) (Cummins v Keenan), the Full Federal Court found that an employee’s workplace right under section 341(1)(c)(ii) of the FW Act is based on the ability of an employee to make any complaint or enquiry in relation to their employment. They found that there is no requirement that the complaint or enquiry be

underpinned by an entitlement or right to make a complaint or enquiry, such as under a contract, award or legislation.

So where does that leave the law? In a word: uncertain. One may argue that the decision of PIA v King, being the first of the two Full Federal Court decisions, may mean Cummins v Keenan is not the correct authority given arguably the Full Federal Court in Cummins v Keenan should have adopted the reasoning in PIA v King. However, given Cummins v Keenan is now the later Full Federal Court decision, there is an argument that it is now the prevailing authority.