Cummins South Pacific Pty Ltd v Keenan

[2020] FCAFC 204

FEDERAL COURT OF AUSTRALIA

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204

Appeal from:   

Keenan v Cummins South Pacific Pty Ltd [2018] FCCA 2600

File number:

VID 254 of 2019

Judgment of:

BROMBERG, MORTIMER AND ANASTASSIOU JJ

Date of judgment:

24 November 2020

Catchwords:

INDUSTRIAL LAW – adverse action – appeal from Federal Circuit Court of Australia – whether respondent was dismissed in contravention of s 340(1) of Fair Work Act 2009 (Cth) (FW Act) – whether complaints were made within the meaning of s 341(1)(c)(ii) – whether respondent was “able to make” a complaint or inquiry – assessment of evidence by primary judge in relation to finding of breach of ss 340(1) and 352 of the FW Act – whether primary judge erred in finding that appellant had failed to rebut the statutory presumption in s 361 of the FW Act

INDUSTRIAL LAW – long service leave entitlements under Long Service Leave Act 1992 (Vic) (LSL Act) – whether respondent was “continuously employed” by “one employer” in Victoria while employed by a related entity overseas – whether entitlement to long service leave requires a substantial connection to Victoria at all relevant times – entitlement to long service leave assessed at time of crystallising event – whether entitled to long service leave for an anterior period of time, in which there is no connection to Victoria, by operation of the LSL Act

DISPOSITION – appeal allowed in part in relation to appeal grounds pertaining to ss 340(1) and 352 of FW Act – appeal dismissed in relation to appeal ground pertaining to LSL Act

Legislation:

Conciliation and Arbitration Act 1904 (Cth)

Fair Work Act 2009 (Cth)

Industrial Relations Act 1988 (Cth)

Workplace Relations Act 1996 (Cth)

Industrial Relations Act 1979 (Vic)

Interpretation Act 1897 (NSW)

Interpretation of Legislation Act 1984 (Vic)

Long Service Leave Act 1955 (NSW)

Long Service Leave Act 1992 (Vic)

Fair Work Bill 2008

Cases cited:

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859

Australian Red Cross v Queensland Nurses’ Union of Employees (2019) 273 FCR 332

Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337

Cigarette & Giftware House Pty Ltd v Whelan (2019) 268 FCR 46

Cohen v iSoft Group [2012] FCA 1071

Cohen v iSOFT Group Pty Limited [2013] FCAFC 49

Commonwealth Bank of Australia v Barker (2014) 253 CLR 169

Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298

DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242

Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17

Flageul v WeDrive Pty Ltd [2020] FCA 1666

Fox v Percy (2003) 214 CLR 118

Henry v Leighton Admin Services Pty Ltd [2015] FCCA 1923

International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64

Khiani v Australian Bureau of Statistics [2011] FCAFC 109

Kodari Securities Pty Ltd v Tran [2020] FCAFC 164

Mackay v Dick (1881) 6 App Cas 251

Maric v Ericsson Australia Pty Ltd [2020] FCA 452

Milardovicv Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15

Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SAS Trustee Corporation v Miles (2018) 265 CLR 137

Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596

Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Short v Ambulance Victoria [2015] FCAFC 55

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531

The Environmental Group Ltd v Bowd [2019] FCA 951

Thiess v Collector of Customs (2014) 250 CLR 664

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534

Division:

Fair Work Division

Registry:

Victoria

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

341

Date of hearing:

5 August 2019

Counsel for the Appellant:

Ms R Doyle SC with Mr J Forbes and Mr J Fetter

Solicitor for the Appellant:

Dentons

Counsel for the Respondent:

Mr C Gunst QC with Mr R Millar

Solicitor for the Respondent:

McDonald Murholme

ORDERS

VID 254 of 2019

BETWEEN:

CUMMINS SOUTH PACIFIC PTY LTD (ACN 006 332 949)

Appellant

AND:

ANDREW KEENAN

Respondent

ORDER MADE BY:	BROMBERG, MORTIMER AND ANASTASSIOU JJ
DATE OF ORDER:	24 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The appeal be allowed in part in respect of appeal grounds 3 – 9 and appeal ground 12.

2.Paragraphs 1, 2, 4, 5, 6, and 7 of the Order of the Federal Circuit Court of Australia dated 8 March 2019 be set aside.

3.The proceeding be referred for urgent mediation before a Registrar of the Court to be held on a date to be fixed.

4.Should the proceeding not be resolved at mediation, the proceeding be listed for a Case Management Hearing before the presiding judge on a date to be fixed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

INTRODUCTION

1. This appeal concerns an application made under the general protections provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (“FW Act”) by Andrew Keenan (“Mr Keenan”) against Cummins South Pacific Pty Ltd (“Cummins”).

2. Cummins is the Australian emanation of a multinational corporate group which is in the business of manufacturing diesel engines. Mr Keenan worked for Cummins and its related entities for approximately 34 years, first as an engineer and later as a member of Cummins’ senior managerial staff.

3. The principal allegation in Mr Keenan’s application was that six adverse actions, including his dismissal from employment with Cummins, had been taken against him because he made certain complaints about his employment. His application was based on Cummins having taken each of the adverse actions it took against him including because he made one or more of the following five complaints: a complaint made about his colleague Sharmili Baldota (“Ms Baldota”) on 17 July 2014 (“first complaint”); a further complaint on 26 February 2015 about Ms Baldota (“second complaint”), a complaint on 27 May 2015 that a certain Performance Improvement Plan (“PIP”) was subjective or ambiguous (“third complaint”); a complaint on 29 July 2015 that he was extremely stressed (“fourth complaint”); and a complaint raised by way of an ‘ethics case’ against Ms Baldota and Christina Beaulieu (“Ms Beaulieu”) on 25 October 2015 (“fifth complaint”). Mr Keenan also alleged that in contravention of s 352 of the FW Act, he was dismissed because he had been absent from work whilst ill. Further, he claimed that on the termination of his employment Cummins had underpaid his long service leave entitlements because the service he had provided to a related corporation of Cummins had not been counted.

4. Mr Keenan’s application was successful in the Federal Circuit Court of Australia. At first instance, the primary judge made declarations to the effect that, among other things, Cummins breached s 340(1) of the FW Act by each of the six instances of adverse action pleaded by Mr Keenan. His Honour also found that s 352 had been contravened as alleged. The primary judge ordered that Mr Keenan’s employment with Cummins be reinstated along with substantial compensation. A declaration was made requiring Cummins to recognise the service provided by Mr Keenan to its related corporation for the purposes of Mr Keenan’s long service leave entitlements. Penalties were imposed upon Cummins for contravening ss 340(1) and 352 of the FW Act.

5. Each of those orders and declarations made in favour of Mr Keenan is the subject of this appeal.

6. The procedural background to this matter is further set out in the reasons for judgment of Anastassiou J. I gratefully adopt his Honour’s summary of those matters as well as the summary of the facts there given in so far as they supplement the facts set out herein.

   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.

1. 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.

2. 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.

3. 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.

4. 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”.

5. 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.

6. 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”.

7. 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.

8. 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”.

9. 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

10. 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).

11. 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).

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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 Milardovicv Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [68]-[69] (Mortimer J).

22. 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.

23. 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).

24. 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. 

25. 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?

26. 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.

27. 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.

1. 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.

2. 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”.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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”.

8. 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).

9. 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.

10. 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.

11. 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.

12. 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.

13. 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).

14. 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. 

15. 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.

16. 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.

17. 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”).

18. 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]).

19. 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.

20. 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]).

21. 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.

1. 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.

2. 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. 

   Did Mr Keenan make a “complaint”?

3. For the reasons that follow I would have also rejected the second basis relied upon by Cummins for asserting that the primary judge erred in holding that the first, second and fourth complaints were not complaints within the meaning of s 341(1)(c)(ii). I would have accepted the submission of Cummins that the third complaint failed to seek redress and was not a “complaint” within the meaning of s 341(1)(c)(ii).

4. In relation to the first complaint, Cummins contended that this was a mere statement about unidentified issues Mr Keenan had with Ms Baldota and that no redress was sought. Accepting (as earlier discussed at [13]) that a “complaint” within the meaning of s 341(1)(c) connotes an expression of discontent or grievance in which some redress or relief is sought, I see no error in the primary judge’s characterisation of the first complaint (at [225]-[227]) as not merely an expression of frustration but as a communication of a grievance about the conduct of Ms Baldota and its consequent impediment upon Mr Keenan’s capacity to discharge his role. At [222]-[223], the primary judge disagreed with the contention that, by the first complaint, Mr Keenan did not seek redress. There was no error in that holding. That Mr Keenan was seeking assistance and thus redress was expressed in the communication made to Ms Elderbrant when Mr Keenan asked to meet with her in order to develop “a strategy to resolve the current situation” between himself and Ms Baldota, a situation which he described as “causing us both a lot of personal stress”.

5. In relation to the second complaint relied on by Mr Keenan, Cummins contended that this was a rhetorical question with no redress sought.  The communication in question occurred whilst Mr Keenan, Ms Elderbrant and Ms Beaulieu attended a bar on 26 February 2015.  The main focus of the primary judge’s deliberation was on the rejection of the argument made by Cummins (not pursued on the appeal) that the communication was of no significance because it took place in the social setting of a bar.  The primary judge appears to have accepted that Mr Keenan asked why Ms Baldota was making false allegations against him (at [230] and [236]).  But whether the allegation that Ms Baldota had been making false allegations against him was put rhetorically or not is of no consequence. The primary judge was correctly satisfied (at [239]) that, “as a matter of substance”, Mr Keenan communicated a grievance about aspects of the work of Ms Baldota.  Viewed in its proper context, including the making of the first complaint, the communications made by Mr Keenan was at least impliedly seeking redress.  Indeed, as is apparent from [228] of the primary judge’s reasons, Cummins had itself contended that Mr Keenan had approached Ms Baldota’s manager in the hope that she may be able to “smoothe the waters between them”.     

6. As to the third complaint relied upon by Mr Keenan, Cummins contended that this was a mere criticism of a ‘personal improvement plan’ with no redress sought.  At [247] of the primary judge’s reasons, his Honour found that on 27 May 2015, during a meeting between Ms Beaulieu and Mr Keenan, Ms Beaulieu told Mr Keenan that Cummins was disappointed with his performance and that as a consequence he would be placed on a ‘performance improvement plan’.  The primary judge held that “Mr Keenan complained that several items on the performance improvement plan were subjective and ambiguous”.  At [249] the primary judge said that he was satisfied that this was a complaint within the meaning of the term “complaint” as espoused by Dodds-Streeton J in Shea.  Implicit in that statement is his Honour’s satisfaction that the communication was to be characterised as a grievance in which redress was sought.  Although the primary judge did not give reasons for that conclusion, I am not satisfied that Cummins has established that conclusion to be erroneous.  The communication viewed in context cannot be characterised as mere criticism of a particular plan of Cummins.  The plan in question was a performance improvement plan directed at a requirement being made of Mr Keenan that he improve his performance in circumstances where a failure to do so may lead to his dismissal.  In that context it may be readily appreciated that Mr Keenan’s communication that several items in the ‘performance improvement plan’ were subjective and ambiguous was raised as an expression of discontent or grievance. 

7. However, I accept the contention made by Cummins that no redress was sought.  Mr Keenan’s evidence was that he did not believe that he asked for the personal improvement plan to be redrafted and that he was “just giving feedback on the document”.  That evidence serves to confirm that no redress was sought.  It negates the implication that might otherwise have been available that the criticism made of the personal improvement plan called for its adjustment. 

8. As to the fourth complaint relied upon by Mr Keenan, Cummins contended that this was a communication put forward as an excuse for Mr Keenan’s poor performance with no redress being sought by him. By reference to the Statement of Claim, the primary judge described the fourth complaint as having being made on 29 July 2015 by Mr Keenan when, at a midyear performance appraisal with Ms Beaulieu, Mr Keenan told Ms Beaulieu that he was extremely stressed given the events that had occurred between him, Ms Elderbrant and Ms Baldota. The primary judge accepted that, in that context, Mr Keenan told Ms Beaulieu that he was extremely stressed. His Honour was satisfied that the statement made by Mr Keenan that he was extremely stressed was a “complaint” within the meaning of that expression in s 341(1)(c)(ii) of the FW Act. In doing so, his Honour rejected the contention made by Cummins that the communication was merely an expression of frustration. His Honour did not expressly deal with whether the communication was put forward as an excuse for Mr Keenan’s poor performance or with the question of whether the communication sought redress. It is not clear that those matters were put in issue by Cummins. Assuming they were put in issue, I am not satisfied that, Cummins has demonstrated any error in the primary judge’s characterisation of the communication as a “complaint”. The context in which the communication was made was likely to have been important to its proper characterisation. Again, the context included the prior history of difficulty between Mr Keenan, Ms Baldota and Ms Elderbrant which the reasons of the primary judge record at length, as well as prior calls for redress made by Mr Keenan.

   WAS THE APPROACH TAKEN TO THE ASSESSMENT OF THE EVIDENCE ERRONEOUS?

9. The next challenge by Cummins to the findings that it had contravened s 340(1) of the FW Act was raised by appeal grounds 3 – 9. These grounds concerned factual findings made by the primary judge. Appeal ground 12 made a similar challenge to the finding that s 352 of the FW Act was contravened. Before turning to those challenges directly, the following principles are relevant and worthy of being mentioned at the outset.

10. The appeal is in the nature of a rehearing, not a new hearing: Branir Pty Limited v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]–[22] (Allsop J, with Drummond and Mansfield JJ agreeing). Such an appeal requires a court to conduct “a real review” of the trial and the trial judge’s reasons: Fox v Percy (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ). As Allsop J observed in Branir at [28], appellate judges are required to make up their own minds, that is not done as if they are sitting on the trial. Weight must be given to the views of and advantages enjoyed by the trial judge:

    [I]f a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

11. Those principles were recently endorsed by Katzmann, Mortimer and Jackson JJ in Kodari Securities Pty Ltd v Tran [2020] FCAFC 164 who went on to say (citing Branir at [24]) that “[w]hat constitutes an error will depend, however, not only on the evidence, but also on the nature of the findings and conclusions of the trial judge” (at [43]).

    The s 340(1) Contraventions

12. By ground 4 of its Notice of Appeal, Cummins challenged the primary judge’s conclusion that it had contravened s 340(1) of the Act on six separate occasions. It did so on the basis that the primary judge erred in finding that Cummins had failed to rebut the statutory presumption in s 361 of the FW Act (to which I will shortly turn) in relation to each of the adverse actions which the primary judge held were taken against Mr Keenan. That ground, as well as grounds 3-9 inclusive, raised challenges to the approach taken by the primary judge to the assessment of the evidence, much of which was encapsulated at [13]-[20] of the appellant’s written submissions. With some adaptation to the way those challenges were there put, I am, with respect to the primary judge, persuaded that by reason of the primary judge adopting an erroneous approach to the assessment of the evidence, his Honour erred in concluding that Cummins had failed to rebut each of the operative s 361 statutory presumptions.

13. It is convenient to commence the discussion with an outline of the statutory task which was required of the primary judge. The central statutory provisions (ss 340, 341 and 342) which lay out that task have already been referred to. By reference to High Court authority including Board of Bendigo Regional Institute of Technical and Further Education v Barclay(2012) 248 CLR 500, the following observations made by Dowsett, Bromberg and Murphy JJ in Short at [55], identify the central question that is to be determined in relation to a contravention of s 340(1):

    Where adverse action is taken by one person against another, the task of a court in a proceeding alleging contravention of s 340 or s 351 is to determine why the person took the adverse action and to ask whether it was for a prohibited reason or reasons which included a prohibited reason (Barclay at [5], [44] per French CJ and Crennan J). The question is whether a prohibited reason was a “substantial and operative” reason for the respondent’s action (Barclay at [104] per Gummow and Hayne JJ, see also [59] per French CJ and Crennan J). The relevant inquiry is therefore into the “particular reason” of the decision maker for taking action (Barclay at [42] per French CJ and Crennan J, [102] per Gummow and Hayne JJ), which is a determination of fact to be made by the court taking account of all the facts and circumstances of the case and available inferences (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980 at [7] per French CJ and Kiefel J, Barclay at [45] per French CJ and Crennan J, [79] per Gummow and Hayne JJ).

14. There are three important points there made of relevance here. First, the task of a court is to determine why the adverse action was taken and specifically was it taken for a prohibited reason (or what I earlier called an “actuating circumstance”). Second, the prohibited reason must be a “substantial and operative” reason for the action taken. Third, whether the decision-maker took the adverse action for a prohibited reason is a factual question to be determined by the court taking into account all the facts and circumstances of the case and any available inferences.

15. Sections 360 and 361 of the FW Act must also be mentioned. As will become apparent, the manner in which the primary judge dealt with whether the presumption created by s 361 had been displaced, is of importance to the disposition of the appeal. The principles dealing with that presumption need to be considered.

16. As the Full Court (Logan, Bromberg and Katzmann JJ) stated in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [182]:

    The FW Act provides that a person takes action for a particular reason if the reasons include that reason (s 360). If it is alleged in an application in relation to a contravention of Pt 3-1 of the FW Act (which includes the relevant alleged contravention) that a person took action for a particular reason and taking that action for that reason would constitute such a contravention, then it is presumed that the action was taken for that reason unless the person proves otherwise (s 361).

17. The statutory presumption created by s 361 places an onus on a respondent to establish the fact that the reason alleged was not a reason which actuated the adverse action taken by the respondent: BHP Coal at [192]. Given that, for s 340(1) to be engaged, the reason which actuated the adverse action must be a “substantial and operative” reason, the respondent’s burden is that of negating the alleged reason as a “substantial and operative” reason for the taking of the adverse action in question. A failure to displace the statutory presumption enables the allegation by an applicant that the adverse action was taken for a particular reason to stand as sufficient proof of the fact: Short at [56].

18. Although direct testimony from the person who decided to take the adverse action, which is accepted as reliable, is capable of discharging the statutory presumption imposed by s 361, direct testimony from that person is not a necessary pre-condition for the discharge of the statutory presumption: BHP Coal at [184]-[188]. It is possible, for instance, that the alleged reason may be negated on the applicant’s own evidence: BHP Coal at [192] and see also Australian Red Cross v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 at [72] (Greenwood, Besanko and Rangiah JJ). Whilst the direct testimony of the decision-maker, if given, will need to be considered and may be a weighty consideration, whether or not the statutory presumption made by s 361 is rebutted will depend upon a consideration of all the relevant facts and circumstances that shed light upon why the adverse action was taken.

19. Relying in large part upon the observations made by French CJ and Crennan J in Barclay at [41] and [45], including the observation that the question of why an employer took adverse action against an employee is a question of fact which much be answered in the light of all of the facts established in the proceeding, in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [27], Jessup J (with whom Rangiah J agreed) said this (emphasis added):

    In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.

20. At [28], his Honour continued:

    In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer.

21. Mr Keenan alleged that six adverse actions were taken against him by Cummins. In summary they were:

    ·16 March 2015 – the making of allegations against Mr Keenan in an ethics investigation interview (“first adverse action”);

    ·18 May 2015 – the making of an ethics complaint about Mr Keenan (“second adverse action”);

    ·27 May 2015 – the implementation of a performance improvement plan (“third adverse action”);

    ·2 November 2015 - the statement in the appellant’s letter to Mr Keenan that the appellant was considering dismissing Mr Keenan; (“fourth adverse action”)

    ·2 November 2015 – The suspension of Mr Keenan from his employment (“fifth adverse action”);

    ·25 November 2015 – The dismissal of Mr Keenan from his employment (“sixth adverse action”).

22. As part of the statutory task required of him, the primary judge was required to determine whether each of those events just listed constituted “adverse action” within the meaning of that expression in s 342 of the FW Act. Although, in relation to some of those events, that issue was in contest, the primary judge determined that each of the six events constituted adverse action. In so doing and as I further explain at [110] below, the primary judge seems to have resolved the contest as to whether the first event occurred at all in favour of Mr Keenan. Those determinations are not in contest on the appeal. There is no issue that the primary judge correctly performed that aspect of the statutory task.

23. Next, as already identified, Mr Keenan relied upon the making by him of five complaints. The primary judge needed to and did deal with whether each of the five communications relied upon was a “complaint” within the meaning of s 341(1). Those matters have already been addressed and my reservations have been recorded. For current purposes I will assume that that aspect of the statutory task was correctly performed.

24. It is necessary then to appreciate that Mr Keenan alleged that each of the six adverse actions taken against him by Cummins was motivated by one or more of the complaint or complaints made by him that preceded the adverse action in question. Thus it was contended that the first and third adverse actions were each motivated by each of the first and second complaints, the second adverse action was motivated by the first, second and third complaints, and that each of the fourth, fifth and sixth adverse actions were motivated by each of the first to fifth complaints.

25. Why Mr Keenan introduced that level of complexity to his claim, when his claim for relief must be understood as principally focused on his dismissal as the event which caused his claimed financial loss, is not clear. Whatever the reason, it is clear that Mr Keenan’s case was that each of the six adverse action taken against him was done in contravention of s 340(1) of the FW Act. As the declarations made by the primary judge demonstrate, his Honour found six contraventions of s 340(1) of the FW Act, that is, a contravention in relation to each of the six adverse actions relied upon by Mr Keenan.

26. To have correctly performed the statutory task required of him in relation to each contravention of s 340(1) found, the primary judge needed to be satisfied of the fact that a complaint made and relied upon by Mr Keenan as actuating the adverse action the subject of the contravention, was a substantial and operative reason for Ms Beaulieu (whom the primary judge held was the decision-maker) to have taken that action. In reaching that state of satisfaction, the primary judge was entitled to rely on the s 361 statutory presumption relating to the particular reason alleged by Mr Keenan as actuating the particular adverse action. That was so if the presumption had not been rebutted and thus remained operative. Whether the particular presumption had not been rebutted and remained operative had to be considered not merely by reference to the testimony of Ms Beaulieu, but by reference to all of the facts and circumstances relevant to whether the particular alleged reason was a reason which had actuated the particular adverse action in question.

1. I turn now to the question of whether the first to fourth complaints are complaints within the meaning of s 341(1)(c)(ii). It is convenient to summarise the complaints again at this point:

   ·First complaint: made on 17 July 2014 during a telephone call between Mr Keenan and Ms Elderbrant. In substance, Mr Keenan informed Ms Elderbrant he was having difficulties with Ms Baldota, specifically that she was making false accusations about him.

   ·Second complaint: made on 26 February 2015 during a conversation in a bar in the United States between Mr Keenan, Ms Beaulieu and Ms Elderbrant. In substance, Mr Keenan reiterated his complaint concerning Ms Baldota.

   ·Third complaint: made during the 27 May 2015 meeting about the PIP. Mr Keenan stated that certain aspects of it were ‘ambiguous’ and ‘subjective’.

   ·Fourth complaint: made during the 29 July 2015 mid-year performance review. Mr Keenan stated that his poor performance was due to his stress and the breakdown of his relationship with Ms Elderbrant and Ms Baldota.

2. I shall consider the first and second complaints together, and then the third and fourth complaints separately in turn.

   First and second complaints

3. The first and second complaints concerned the deteriorating relationship between Ms Baldota and Mr Keenan.  The precise expression of these complaints is not entirely clear from the primary judge’s findings.  However, it is clear that the essence of the complaints was that Ms Baldota had been making false accusations about Mr Keenan.  It was that conduct on Ms Baldota’s part which Mr Keenan claimed had caused their relationship to become strained and to deteriorate.

4. In my view, Mr Keenan’s ‘complaints’ concerning his relationship with Ms Baldota was the voicing of dissatisfaction about the interpersonal relationship between Mr Keenan and Ms Baldota and conflict between them. Such deteriorating relationships may mature into formal complaints, complaints or claims pursuant to grievance procedures or other processes, where such procedures are available. However, in the present case, the first and second complaints had not matured into a complaint made through the procedure available to Mr Keenan to make a formal complaint had he chosen to do so. I do not suggest that there is any requirement of formality for a complaint to meet the definition in s 341(1)(c)(ii); there is not. Rather, the point is that had Mr Keenan at this time invoked the procedures available to him, for example to make an ethics complaint against Ms Baldota, as he later did and is the subject of the fifth complaint, his complaint would then have been plainly ‘underpinned’ by a right or entitlement. Indeed, as I have said above, Cummins does not dispute that the fifth complaint falls within s 341(1)(c)(ii).

5. While Mr Keenan was ‘able to complain’ in a literal sense about his unsatisfactory relationship with Ms Baldota and accuse Ms Baldota of fault in this regard, his ability to do so was not founded upon, or made pursuant to, any right or entitlement to make those complaints. Rather, Mr Keenan availed himself of the opportunity on two occasions to express his dissatisfaction with the conduct of a colleague. For the reasons discussed above, these complaints were not underpinned by any right or entitlement to complain and accordingly fall outside the meaning of complaint in s 341(1)(c)(ii).

   Third complaint

6. The third complaint is of a different character to the first and second complaints for a number of reasons.  First, the third complaint concerned a formal process instigated by Cummins, namely, the placing of Mr Keenan on the PIP.  Second, that formal process was mandated by the employment contract between Cummins and Mr Keenan.  The contract required Mr Keenan to “comply with all Cummins Policies, procedures and requirements”, relevantly including the Performance Management Policy which incorporated the PIP process.  In essence, Mr Keenan complained that aspects of the PIP were extremely subjective and / or ambiguous.  He also asked that Ms Baldota not be involved in the PIP process.

7. Cummins submitted that the third complaint was a “mere criticism, with no redress sought.”  I do not agree.  Such characterisation is devoid of context, specifically, it ignores that Mr Keenan was contractually obliged to participate in the PIP process.  From Mr Keenan’s perspective, the PIP was not consensual, but rather a process which Cummins was entitled to invoke and which Mr Keenan was subject to under his employment contract.  Having regard to this context, it is perhaps unsurprising that Mr Keenan’s express complaint fell short of making any specific demand for redress. 

8. During cross examination of Mr Keenan concerning his complaint about the PIP, he said:  “We discussed the PIP and we discussed each of the seven items and I said, ‘How do I measure success?’ and some of them are a bit ambiguous…”  Mr Keenan explained that some of the criteria in the PIP did not have metrics.  It was put to Mr Keenan that he did not ask for the PIP to be redrafted, to which he replied “I don’t think so”.  It was also put to Mr Keenan that he was cavilling with Ms Beaulieu “over technicalities, metrics and things like that, avoiding the nub of the feedback that she was giving you”.  He was asked whether he accepted that was what he was doing.  In response, Mr Keenan said: “No.  I was following the process, which is objectives in a PIP should be specific, measureable, achievable, realistic and with a time”. 

9. Though Mr Keenan may have expressed his complaint timorously so far as identifying any redress sought, his criticism of the PIP implicitly called for consideration to be given to his critique of the PIP process as it was applied to him and, potentially at least, for some modification to it or other redress.

10. In my view, Mr Keenan was entitled, and thus “able to” in the relevant sense, to voice his complaint.  He was entitled to do so because an employer may only exercise a contractual right, here invoking the PIP process, bona fide for the purpose for which it was conferred.  Mr Keenan was entitled to expect that such a right would not be exercised capriciously or in a manner which would deprive him of the benefit of his contractual bargain with the employer. 

11. The implied obligation of cooperation in the sense identified in Mackay v Dick (1881) 6 App Cas 251 and followed in many cases thereafter, see in particular Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; 144 CLR 596 and Commonwealth Bank of Australia v Barker [2014] HCA 32; 253 CLR 169 at [30], required that Cummins should not exercise its right to instigate its PIP policy in a way that would deprive the employee of the right to fairly respond to the matters raised by the employer. Mr Keenan’s complaint about the matters raised by Cummins being ambiguous and or subjective, implicitly raised a complaint to the effect that he was being deprived of an opportunity to respond to the PIP investigation because of a lack of clarity about matters concerning his performance. In substance, Mr Keenan’s complaint was that he did not know the case he was to meet.

12. Mr Keenan’s complaint about the subjectiveness or ambiguity of the PIP process may or may not have been well founded.  But that is not the point.  Rather, the point is that because he was entitled, at the least, to expect that Cummins would not deprive him of the benefit of his contractual bargain, which included the right to respond to matters raised under the PIP process, he was contractually entitled to raise his ‘complaint’ that the PIP was subjective and / or ambiguous. 

13. Mr Keenan’s right or entitlement to complain about the PIP process falls within the sources of such rights or entitlements identified by the majority in PIA Mortgage (at [18] and [19]). The majority referred (at [18]) to a contractual right to ‘raise a grievance or otherwise complain’, but did not confine the right to an express contractual right to complain, saying rather that s 341(1)(c)(ii) “must at least apply” where there is such a contractual right. Although Mr Keenan’s contract of employment did not contain an express right to complain about the PIP process, for the reasons given above, his complaint concerned his contractual entitlements. Accordingly, under the ‘general laws’ in the sense referred to in PIA Mortgage at [19], Mr Keenan was entitled to raise a complaint about the implementation of the PIP process in relation to him. Accordingly, in my view the third complaint constituted a complaint within the meaning of s 341(1)(c)(ii).

    Fourth complaint

14. The fourth complaint was made by Mr Keenan in a meeting with Ms Beaulieu on 29 July 2015.  Mr Keenan said he felt stressed over events that had occurred between him and Ms Elderbrant and Ms Baldota.  Mr Keenan also said that he was stressed over the ethics investigation in relation to him.  Cummins submitted at the trial and on appeal that Mr Keenan’s statements were no more than the expression of frustration.  The primary judge rejected Cummins’ characterisation and found that Mr Keenan had brought complaints about the cause of the stress to the knowledge of Ms Beaulieu and Ms Elderbrant (liability reasons at [254] and [255]).

15. I disagree with the primary judge’s acceptance of the fourth complaint as a complaint within the meaning of s 341(1)(c)(ii). The primary judge does not explain his reasons for reaching his conclusions in relation to the fourth complaint. In my view, while it may not be correct to characterise the fourth complaint only as the expression of frustration, Mr Keenan’s statement was plainly an expression of his feelings or his emotional reaction to the interactions between him and Ms Baldota and Ms Elderbrant. Mr Keenan communicated those feelings but did not expressly, or impliedly, request any redress. Mr Keenan’s communication did not convey as a matter of substance “a grievance, a finding of fault or accusation”, as Dodds-Streeton J at [29(a)] characterised a ‘complaint’ in Shea.

16. Further, the primary judge did not identify an entitlement in the relevant sense for Mr Keenan to express this “complaint’, if it be one. Accordingly for the above reasons, if it was otherwise a complaint, it was not a complaint within the meaning of s 341(1)(c)(ii).

    Fifth complaint

17. The fifth complaint was the ethics complaint made by Mr Keenan on 25 October 2015. As noted above, it was common ground that this complaint came within the meaning of s 341(1)(c)(ii).

18. Cummins submitted that it had satisfied the reverse onus in relation to the fifth complaint as the decision to terminate Mr Keenan had been made by Ms Beaulieu immediately after the meeting on 28 October 2015 between her and Mr Keenan, and that at this time Ms Beaulieu did not know about the ethics case instigated by Mr Keenan.  By reason of this disparity in timing between Ms Beaulieu becoming aware of the fifth complaint and the fourth, fifth and sixth adverse actions, Cummins submitted that the fifth complaint could not be causative of the fourth, fifth and sixth adverse actions.  For the reasons given by Bromberg J, the question of whether any adverse action was actuated by the fifth complaint may need to be re-determined.

    Disposition – Appeal Grounds 3 to 9 and 12

19. As I have noted above, I have had the advantage of reading in draft the Reasons for Judgment of Bromberg J, with whom Mortimer J agrees. I respectfully agree with, and gratefully adopt, the Reasons of Bromberg J for the disposition of this appeal, subject to what I have said concerning the construction of s 341(1)(c)(ii) and the characterisation of the first, second and fourth complaints. I agree with the reasons of Bromberg J regarding appeal grounds 3-9 and 12. I also agree with their Honours’ suggested disposition of the appeal in relation to these grounds, save that if any re-determination should be required in relation to the contravention of s 340(1) of the FW Act, any such determination should be limited to the consideration of adverse actions actuated by the third and fifth complaints. Further, for the reasons set out by Bromberg J at [121], with which I agree, it is unnecessary to decide grounds 10 and 11 of the appeal.

    ENTITLEMENT TO LONG SERVICE LEAVE

20. Under ground 13 of the appeal, Cummins challenges the calculation of Mr Keenan’s long service leave entitlements under the LSL Act. For convenience, I briefly set out the facts relevant to this ground before referring to the relevant legislative provisions.

    Factual background

21. In September 1981, Mr Keenan commenced employment with Cummins Darlington, a UK subsidiary of the USA-based Cummins Inc., and remained an employee until February 1995 (a period of approximately 13 years).  In February 1995, he accepted a position with Cummins Australia Pty Ltd and moved to Victoria.  He remained an employee of Cummins and lived and worked in Victoria until May 2007, a period of approximately 12 years.  From May 2007 until December 2013, Mr Keenan worked as an employee of Cummins on “secondment”, at the head office of Cummins Inc. in Indiana, a period of approximately 6 years.  In March 2014, Mr Keenan returned to Victoria and worked for Cummins in the role of CBS Regional Leader.  His employment was terminated on 25 November 2015.

    Overview of LSL Act

22. The provisions concerning an employee’s entitlement to long service leave were, at the relevant time of Mr Keenan’s employment, located in Division 6 of Part 5 of the LSL Act.

23. Section 56 of the LSL Act provided for the basic entitlement to long service leave:

    56 Basic entitlement to long service leave

    An employee is entitled to—

    (a) 13 weeks of long service leave on ordinary pay on completing 15 years of continuous employment with one employer; and

    (b) 4 1/3 weeks of long service leave on ordinary pay on completing each period of 5 years of continuous employment with that employer after the first 15 years of continuous employment with that employer.

24. Section 57 of the LSL Act was also relevant in circumstances where Mr Keenan’s employment was terminated after more than 15 years continuous employment in Victoria (on any argument):

    57 Additional entitlement to long service leave if employment stops after 15 years

    (1) This section only applies if an employee stops working for an employer after completing 15 years of continuous employment with that employer.

    (2) The employee is entitled to an amount of long service leave equal to 1/60th of the period of his or her continuous employment with that employer since he or she last became entitled to long service leave under section 56.

    (3) The period of an employee's long service leave that relates to a period of employment before 1 January 1965 and that had not been taken before the commencement of this Division is to be reduced by one quarter.

25. The interpretation of these sections is informed by the surrounding provisions in Division 6 of Part 5. In particular, s 60 of the LSL Act relevantly provides for a number of situations in which an employee is regarded as having been employed by “one employer”, despite having worked over the relevant period for more than one employer in a strict legal sense:

    60 Meaning of one employer

    (1) This section sets out several situations in which an employee is to be regarded, for the purposes of this Division, as having been employed by the one employer, even though the employee may have worked over the relevant period of time for more than one employer in a strict legal sense.

    (2) If an employee is employed by a corporation, he or she is to be regarded as having been employed by that corporation during any period that—

    (a) he or she was employed by a related body corporate of that corporation (within the meaning of the Corporations Act); or

    …

26. The meaning of s 4(13) in the Long Service Leave Act 1955 (NSW) (NSW LSA) – an analogous provision – was considered in International Computers (Australia) Pty Ltd v Weaving [1981] 2 NSWLR 64; AR (NSW) 548. Sitting as the Industrial Commission of New South Wales in Court, Watson, Dey and Maclean JJ observed (at 74):

    Much of the worker's aggregated service, assuming s 4(13) enables all to be included, occurred under various separate contracts not remotely connected with New South Wales.

    As Mr Meagher submitted, we are not called upon to consider a continued attachment to one employer but a series of separate employments which, as a result of the “deeming” provisions, are treated as notionally creating a continuity of service between the worker and his employer dating back to the commencement of the employment with the related corporations which have successively been his previous employers. Once the fiction has been created by the section, however, we do not consider that there are grounds for concluding that broken parts, which are to be treated as a notional whole, are to be regarded differently from an original unity.

    (emphasis added)

27. Supplementing this provision in the LSL Act is s 62, which elucidates the meaning of the phrase “continuous employment”:

    62 Meaning of continuous employment

    (1)This section sets out several situations in which an employee is to be regarded, for the purposes of this Division, as having been continuously employed even though in a strict legal sense it could be said that the employee's employment was interrupted.

    (2)An employee's employment is to be regarded as being continuous despite—

    (a) the taking of any annual leave or long service leave;

    (b) any absence from work on account of illness or injury;

    (c) any other absence from work approved by his or her employer (paid or unpaid), including carer's leave but not including adoption, maternity or paternity leave;

    …

    (d) any interruption or ending of the employment by the employer if the interruption or ending is made with the intention of avoiding obligations in respect of long service leave or annual leave;

    (e) in the case of an employee performing duties in relation to assets of a particular kind, any absence from work arising solely because of a transfer to which section 60(6) applies of those assets from one employer to another employer;

    (f) any interruption arising directly or indirectly from an industrial dispute;

    (g) the dismissal of the employee, but only if he or she is re-employed within a period not exceeding 3 months after his or her dismissal;

    (h) the standing-down of the employee on account of slackness of trade;

    …

    (emphasis added)

28. Implicit in the non-exhaustive definition of “continuous employment” is an assumption that continuous employment has commenced and subsequently been interrupted or disrupted. That concept does not envisage a situation in which an employee, such as Mr Keenan, has never had a relevant connection to the jurisdiction for a period anterior to being employed in Victoria. Further, in my view, the concept of “one employer” does not entirely override, or render otiose, the requirement that there must be “continuous employment”. This interpretation is supported by the fact that s 60 does not expressly disavow of the concept of “continuous employment” in such circumstances. I return to this issue after briefly canvassing the primary judge’s reasons.

29. The primary judge found that Mr Keenan was entitled to long service leave calculated in accordance with the LSL Act for the entirety of his employment with CBS, including the period between September 1981 and February 1995 prior to his employment with Cummins in Victoria. After construing the relevant statutory provisions, the primary judge held (liability reasons at [381]):

    It seemed to me that the provisions of the Long Service Leave Act were enacted so as to provide for long service leave to be conferred on employees who had served their employer (as defined) for prescribed periods. Here Mr Keenan did just that. He therefore became entitled to payment in accordance with s 56 of that Act. It did not lie in the hands of a trial judge such as me to fail to apply that which Parliament enacted…

1. The contest before the primary judge on the question of whether Mr Keenan was entitled to long service leave calculated from the commencement of his employment in the UK in 1981 is described in the liability reasons at [357]-[359]. Mr Keenan submitted to the primary judge that the question was whether he was entitled to leave calculated from September 1981 or limited to his service with Cummins from 18 February 1995. By posing the question in those terms, the submissions on behalf of Mr Keenan conflated the meaning of “one employer” with the starting point for the purposes of calculating Mr Keenan’s entitlement to long service leave. Indeed, the submission elided the question of whether the period of employment by a related entity outside the jurisdiction of Victoria should be regarded as “continuous employment” within the meaning of ss 56(1), 57(1) and 62(1) of the LSL Act.

2. Cummins’ submissions to the primary judge are referred to in the liability reasons at [359]. First, Cummins submitted that it was unlikely that parliament intended that an employee should obtain a windfall, estimated at 26 weeks’ pay, where the employee’s former peers (presumably his cohort in the UK) working for the same period of time overseas would have no entitlement. Second, it was submitted that the so-called “Golden Rule” of statutory construction requires that legislation be construed in a manner which avoids absurd outcomes where the ordinary meaning would have that effect. Third, Cummins submitted that where patently unfair or absurd outcomes arise, a purposive approach to the legislation should be adopted.

3. The primary judge expressed a view that the submissions did not accurately summarise the legislative principles (liability reasons at [360]-[370]). The primary judge then set out the relevant provisions of the LSL Act, noting in particular the breadth of s 60 (liability reasons at [378]-[380]). However, his Honour did not expressly consider whether an entitlement to long service leave was predicated upon the employee having a “substantial connection” to Victoria.

4. His Honour ultimately rejected the contention that taking into account Mr Keenan’s earlier period of employment in the UK, prior to commencing employment with Cummins in Victoria in February 1995, would lead to any absurdity, repugnance or patent unfairness.  In particular, the primary judge said (liability reasons at [380]):

   It seemed to me that on several bases set out in s 60, the respondent was “one employer” for the purposes of s 57 of the Long Service Leave Act.  I reject the respondent’s submissions to the contrary.

   Consideration

5. On its proper construction, the LSL Act provides for an entitlement to long service leave where: (a) there have been 15 years of “continuous employment”; and (b) that employment is with “one employer”.

6. There can be no doubt that Mr Keenan’s employment was with “one employer”, as the various Cummins entities were related bodies corporate within the meaning contemplated in s 60(2)(a) of the LSL Act. Indeed, in the written submissions on this appeal, Mr Keenan submitted at [32] that: “It was not disputed at trial (or on this appeal) that all of Mr Keenan’s employment from 1981 to 2015 was with the appellant Cummins or a related body corporate.” Accordingly, the primary judge’s reasons at [380] seem to reject Cummins’ submissions on the basis of a matter not in dispute.

7. The real matter of controversy was whether Mr Keenan was “continuously employed” by Cummins, when that phrase is properly understood.  I consider that continuous employment should be construed to mean continuous employment in Victoria, having regard to s 48(b) of the Interpretation of Legislation Act 1984 (Vic) (Interpretation Act). That subsection of the Interpretation Act provides that, unless the contrary intention appears, a reference to a matter or thing should be construed as a reference to such matter or thing in and of Victoria.

8. While submissions were not advanced on this issue, I do not accept that any contrary intention appears in the LSL Act, such as to preclude s 48(b) of the Interpretation Act from applying. I do not agree with the observation in Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246 at 252 that such an approach would have the effect that the entirety of the service would need to be performed in Victoria. The LSL Act clearly contemplates that there may be many companies in Victoria with employees that spend time interstate or overseas. Reading in the words ‘in Victoria’ would not have the effect of imposing an absolute territorial limitation.

9. Once the phrase “continuous employment” is understood in these terms, I am satisfied that the employee’s period of employment should be construed as commencing to run only from the time at which an employee first performs work with some connection to Victoria, and that on any view, Mr Keenan’s employment possessed no connection with Victoria prior to 1995. I also regard this construction as consistent with the authorities that have considered equivalent provisions in the NSW LSA, including Timken at 253 and Cohen v iSoft Group Pty Limited [2012] FCA 1071 at [171]-[172].

10. Those authorities make it plain that there is a territorial limitation to the entitlement to long service leave. That is to say, there must be a “substantial connection” between the relevant jurisdiction and the employee’s performance of their duties. The NSW LSA is not relevantly distinguishable from the LSL Act, at least in respect of the requirement for “continuous employment”. Accordingly, I respectfully adopt what was said by Flick J in Cohen at [172], citing Timken at 253:

    The territorial limitation which it has been accepted applies in respect to the Long Service Leave Act is that it is necessary to find some nexus between the Act and the State of New South Wales: Australian Timken Pty Ltd v Stone (No 2) [1971] AR (NSW) 246 at 253. The test which was there applied was whether the there was a “substantial connection” with New South Wales.  McKeon, Sheldon and Sheppard JJ there concluded:

    … We are, therefore, in agreement with the appellant’s approach to the problem to the extent that it contends that the service involved must be connected with New South Wales.  We think, however, that its submission go too far when they involve the proposition that the service (subject to temporary absences) which is to be rewarded must be performed entirely in New South Wales.  We think that the benefits provided for in the Act accrue if at the time the relevant event occurs (that is, completion, termination or cessation) the service which was being performed up to that time has a substantial connection with this State.  This interpretation seems to us to accord with the purpose and policy of the Act without being in any way inconsistent with its language.  It is to be assumed that the legislature intended the statute to bear a meaning which would have regard to the practical situation in industry and would leave as few anomalies as possible.  We believe that the interpretation we favour achieves this result.  This view does not make it necessary, as in the case of workers’ compensation legislation, that the relevant event must occur within the State but it is essential that, at the time of its occurrence, the service, looked at as a whole, may fairly be said to be to a substantial extent New South Wales service.  Whether it is or not must be a question of fact and degree in each case.  If, however, the service is actually being performed here at the time when the relevant event occurs, this is strong although not conclusive evidence that the service has a substantial connection with New South Wales.  While we realize, on this pragmatic test, that there will be some cases close to the border, we see no difficulty in the present case. …

11. The reasoning in International Computers at 74 is also apposite in the present circumstances:

    In the light of the decision in Timken's case [1971] AR (NSW) 246 we consider that it is not necessary that all service should be substantially connected with New South Wales, but that it is essential that, at the time when the relevant event occurred, the worker's service may be fairly said to be New South Wales service. There is no doubt that at the relevant time in this case the worker's service had a substantial connection with New South Wales.

    Upon the basis that at the relevant time the operation of the Act would be attracted provided there had been the necessary qualifying service, it becomes necessary to consider whether or not the earlier service is to be taken into consideration consequent upon the “deeming” provisions of s 4(13).

    ….

    We have already said with respect to aggregation under s 4(13) that, as artificial as it may seem, the aggregated service must be regarded no differently from that of service with one employer instead of a number of related employers. It is of little importance that the original employer or for that matter the last employer may be a foreign corporation (although in the latter case, in particular, this may be relevant to the question whether or not at the crucial time there was a substantial connection with New South Wales). Despite the fictional situation created we see no basis for reading down the section in the way contended for by the appellant so as to exclude in the aggregation any service which did not have in each instance “a substantial connection with New South Wales” so as to make it service under what Mr Meagher described as “New South Wales contracts”.

12. To the extent that International Computers is to be understood as focusing narrowly on the time at which the crystallising event occurs, at the expense of considering the question of whether there is a substantial connection to Victoria, I respectfully disagree with that approach.  Such an approach would be quite unsatisfactory given that the predicate to the entitlement to long service leave is continuous service over an extended period of time.

13. Accepting that there must be a sufficient nexus to Victoria, the issue which arises is whether that connection existed in respect of Mr Keenan’s tenure at Cummins Darlington from September 1981 to February 1995.  In this regard, I consider the present circumstances are distinguishable from those in International Computers.  At a high level of comparison, International Computers may appear factually similar to the present case, in that the relevant employee commenced employment outside the jurisdiction in question and had periods of employment overseas.  However, when examined more closely, the comparison is less compelling. 

14. The employee in International Computers commenced employment in Victoria in August 1963, for a company incorporated in New South Wales.  In November 1964, he was advised that another company, also incorporated in New South Wales, had taken over the activities of his former employer.  The employee was invited to continue his employment in Victoria, to which he agreed.  In January 1966, he moved to Sydney to continue working with the company.  From January 1967, the employee then spent two and half years working for a related body corporate in South Africa.  In or around August 1969, the employee went to the United Kingdom and worked for another related company.  He accepted a position to return to New South Wales in December 1975 and continued his employment in Sydney until September 1978.  Crucially, there was an anterior period of employment in New South Wales in International Computers, and a substantial connection across the period assessed at the time the employee left in 1978. Unlike in the present case, that period of employment had merely been interrupted in a sense similar to that contemplated by s 62 of the LSL Act.

15. While I accept that the difference between the present circumstances and those in International Computers is a matter only as to degree, the greater nexus to New South Wales in that case and the period of time spent overseas are also plainly relevant to the question of whether there was a substantial connection to the jurisdiction for the whole of the period of employment.  Where, as here, there is a significant portion of the service outside Victoria, anterior to any period of employment within Victoria, in my view the substantial connection to Victoria for that anterior period is not established.

16. I accept the proposition that the benefits provided for in the LSL Act are to be assessed, and accrue, at the time the crystallising event occurs. I also accept that the statute specifically and clearly defines “one employer” in such a way as to capture related entities. But that analysis does not foreclose proper consideration of whether an employee has been “continuously employed” and whether there has been a substantial connection to the relevant jurisdiction. Indeed, it does not mean that an extended period of employment prior to there being any connection with Victoria may be amalgamated with an earlier period in which there was no connection, save that the employee was engaged by an entity related to the Victorian based employer. The conclusion might be different if the factual matrix were otherwise, but here there was no continuous employment in Victoria, in the sense contemplated by the LSL Act, given the absence of any connection to Victoria at all prior to 1995.

17. Further, and relatedly, the primary judge at [380] rejected Cummins’ contentions invoking the so called “Golden Rule” of statutory construction and found that in any event, no such absurdity arose on the facts.  However, his Honour did not explain why he considered that no absurdity or patent unfairness arose on the facts.  With respect, the analogy, or worked example, posited by the primary judge at [382] begs the question.  The example given of an employee who is engaged by related entities for offshore and onshore work is not analogous.  In that example, it is implied that the hypothetical employee lives and works in Melbourne, save in so far as he is undertaking offshore work.  It is not express in the example but it may be inferred that the employee departs from Melbourne for offshore work.  It is common place for employees engaged in work in remote locations to “fly in – fly out”, to other states in Australia or to overseas locations. 

18. That example is not analogous to the circumstances presented by Mr Keenan’s claim for long service leave to be calculated by including the time he served with Cummins Darlington in the United Kingdom.  It was only upon Mr Keenan’s employment by Cummins in Victoria, from February 1995, that his employment acquired a connection with Victoria.

19. In my view, the absurdity of a construction of the LSL Act which would result in Mr Keenan having his entitlements calculated back to 1981 is plain. The example given by Cummins is of an employee of a company who serves 29 years outside Australia and only one year for a related entity in Victoria, resulting in the employee becoming entitled to long service leave calculated on the basis of 30 years continuous service. This is not a fanciful scenario and is patently absurd and unfair.

20. Cummins did not contend that the period post-1995, during which Mr Keenan was working on “secondment” at Cummins’ head office in Indiana, should be excluded. It is therefore unnecessary for me to decide whether this period should be included in the calculation of Mr Keenan’s continuous employment with Cummins. However, were it necessary to do so, I would find that that period should be included. The concept of an employee being “seconded” involves an arrangement under which the employee is retained as an employee of the entity arranging, or consenting, to the employee working for another, usually but not necessarily a related entity, his or her position being reserved or kept available for him or her to return to. The premise of the arrangement is that the employee remains an employee of the consenting employer or that the employee will have a right to return to his or her position at the conclusion of the secondment. For completeness, and as outlined above, s 62 of the LSL Act contemplates several situations in which an employee is to be regarded, for the purposes of this Division, as having been continuously employed even though in a strict legal sense it could be said that the employee's employment was interrupted. While a secondment is not one of those situations, if a Victorian employer consents to a secondment arrangement, there remains a substantial connection to Victoria.

    Disposition – Appeal Ground 13

21. For the above reasons, I respectfully disagree with Bromberg J, with whom Mortimer J agrees, in relation to the disposition of the long service leave issue raised on appeal.  In my view, appeal ground 13 should be upheld, such that Mr Keenan would only be entitled to long service leave in respect of his continuous employment with Cummins from February 1995.

I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

Associate: 

Dated:       24 November 2020