El-Hajje v Rissalah College Limited
[2022] FedCFamC2G 260
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)El-Hajje v Rissalah College Limited [2022] FedCFamC2G 260
File number(s): SYG 1511 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 14 April 2022 Catchwords: INDUSTRIAL LAW – Practice and procedure – whether Court should determine certain questions separately from any other questions – whether s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act) requires a person to have an identifiable entitlement to make a complaint or inquiry in relation to his or her employment – s 341(1)(c)(ii) of the FW Act does not, or it is reasonably arguable it does not, require an identifiable entitlement. Legislation: Alam v National Australia Bank Limited [2021] FCAFC 178
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
Lamont v University of Queensland (No 2) [2020] FCA 720
Lange v Australian Broadcasting Corporation [1997] HCA 25
Maric v Ericsson Australia Pty Ltd [2020] FCA 452
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
Salama v Sydney Trains [2021] FCA 251
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271
Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534
Cases cited: Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c), 342
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 18.02
Division: Fair Work Number of paragraphs: 26 Date of hearing: 30 September 2021 Place: Sydney Counsel for the Applicant: Mr B Rauf with Mr H Pararajasingham, by telephone Solicitor for the Applicant: Thrive Workplace Consulting & Legal Counsel for the Respondents: Mr I Latham with Ms E Dalrymple, by telephone Solicitor for the Respondents: Maksisi Lawyers ORDERS
SYG 1511 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: REFAAT EL-HAJJE
Applicant
AND: RISSALAH COLLEGE LIMITED ABN 12 077 687 837
First Respondent
IMAD EL MASRI
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS THAT:
1.Pursuant to r 18.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the Court decide separately from any other question the following questions:
(a)Does s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act) confer a workplace right for an employee to make a complaint or inquiry with respect to any matter which relates to his or her employment (as the applicant pleads in paragraphs 32, 33, 38, 39, 40, 43, 44, 52, and 53 of the statement of claim)? Or does s 341(1)(c)(ii) of FW Act require an identifiable entitlement to make such a complaint as held in PIA Mortgage Services vKing [2020] FCAFC 15; (2020) 274 FCR 225, at [12], [14], and [16]?
(b)If s 341(1)(c)(ii) of the FW Act only confers a workplace right for an employee to make a complaint or inquiry where there is an identifiable entitlement to make such a complaint, has the applicant pleaded such an identifiable entitlement in paragraphs 32, 33, 38, 39, 40, 43, 44, and 52 of the statement of claim?
(c)If the answer to [(b)] is “no”, should those paragraphs be struck out?
2.Question 1(a) is decided as follows:
Paragraph (ii) of s 341(1)(c) of the FW Act does not require, or it is reasonably arguable that it does not require, an identifiable entitlement to make a complaint or inquiry in relation to a person’s employment; or, to the extent it does, such entitlement or right is to be implied, or it is reasonably arguable that such right or entitlement is to be implied, on the basis of the principle that, under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law.
3.It is not necessary to decide questions 1(b) or 1(c).
4.The proceeding is listed for directions at 9:30 am on 21 April 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The respondents apply for an order that I decide separately a number of questions concerning the application of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act) to a number of allegations made in the statement of claim the applicant, Mr El-Hajje, filed in this proceeding; and that I decide those questions adversely to Mr El-Hajje. Further, or in the alternative, the respondents seek an order that a number of paragraphs of the statement of claim be struck out because they disclose no reasonable cause of action based on a contravention of s 340(1) of the FW Act.
Before I identify the questions and consider the parties’ submissions, it will be necessary to set out the allegations Mr El-Hajje makes in his statement of claim in support of his claims for relief under the FW Act.
STATEMENT OF CLAIM
The applicant makes the following allegations in his statement of claim in relation to his claims for relief under the FW Act:
(a)The first respondent (Rissalah College) operates, and has operated, an educational institution for primary and secondary school students;[1] and the second respondent, Mr El Masri, is, and at all relevant times was, a director of Rissalah College.
[1] Statement of Claim, [3.b.]
(b)On 10 February 2020 Mr El-Hajje commenced his employment with Rissalah College as its chief executive officer (CEO).[2] Mr El-Hajje did so after he sent an email to Ms Wolfgramm attaching a signed copy of an offer of employment Ms Wolfgramm had sent to Mr El-Hajje on 3 February 2020.[3] The offer of employment provided, among other things, that Mr El-Hajje would be reporting to the board of directors of Rissalah College (Board), that Mr El-Hajje’s role would be a permanent role, subject to a six-month probationary period; and that, during probation, either party could terminate the employment relationship by giving one week’s written notice or payment in lieu of notice.[4]
[2] Statement of Claim, [28]
[3] Statement of Claim, [22]
[4] Statement of Claim, [24]
(c)On the day he commenced his employment with Rissalah College, Mr El-Hajje requested Ms Wolfgramm organise a meeting between Mr El-Hajje and the principal of the School, Ms Fattouh, to discuss matters relevant to his role. Ms Wolfgramm later informed Mr El-Hajje that Ms Fattouh refused to meet with Mr El-Hajje. Also on that day, Ms Fattouh confirmed to Mr El-Hajje by telephone that she would not meet with him.[5]
[5] Statement of Claim, [29]-[31]
(d)At 10:14 pm on 10 February 2020 Mr El-Hajje sent an email to the Board in which he “raised complaints that” Ms Fattouh had refused, on multiple occasions, to meet with him to discuss matters relevant to his employment; Ms Fattouh’s conduct towards him was unprofessional; Ms Fattouh was providing false information to the NSW Education Standards Authority about his role, and “the principal” had been interfering in matters relating to the Board and passing on false information.[6]
[6] Statement of Claim, [33]
(e)The matters Mr El-Hajje raised in his email to the Board were complaints or inquiries or both in relation to his employment and, “[i]n the premises” Mr El-Hajje exercised a workplace right as defined in s 341(1)(c)(ii) of the FW Act.
(f)On 11 February 2020 Mr El-Hajje asked Ms Louise, the Deputy Principal of the School, to organise a staff meeting so that Mr El-Hajje could introduce himself to his colleagues. Shortly after, the secretary of the Board, Ms Klink, informed Mr El-Hajje that Ms Fattouh had advised that no such staff meeting would be scheduled, and that the Board had been dissolved.[7]
[7] Statement of Claim, [36], [37]
(g)At 9:20 pm on 11 February 2020 Mr El-Hajje sent an email to the Board in which he complained about the conduct of Ms Klink and Ms Fattouh; complained about the respective demarcation of duties among staff at the School; inquired why Ms Fattouh was “orchestrating a revolt on the board and the CEO”; and complained Ms Fattouh and others created a culture that “is toxic and un-Islamic”.[8]
(h)Also on 11 February 2020 Mr El-Hajje sent to Mr Kheir a text message raising concerns that were within the scope of his responsibilities as CEO about improper payments and classification of staff.[9]
(i)The matters Mr El-Hajje raised in his email to the Board and in his text message to Mr Kheir amount to complaints or inquiries or both in relation to Mr El-Hajje’s employment and, “[i]n the premises” Mr El-Hajje exercised a workplace right as defined in s 341(1)(c)(ii) of the FW Act.[10]
(j)At 4:30 pm on 13 February 2020 Mr El-Hajje sent an email to the Board in which, among other things, he inquired whether he could obtain further clarity on certain aspects of his role as CEO, including the measurement of key performance indicators.[11]
(k)The matters referred to in (j) amount to complaints or inquires or both in relation to Mr El-Hajje’s employment, and, “[i]n the premises” Mr El-Hajje exercised a workplace right as defined in s 341(1)(c)(ii) of the FW Act.[12]
(l)On 14 February 2020 Mr El-Hajje had a conversation with Mr Kheir in the course of which Mr Kheir said that a meeting of the Board had been convened on 14 February 2020 to consider a motion relating to the ongoing employment of Ms Fattouh; rather than considering that motion, the Board moved an alternative motion in relation to Mr El-Hajje’s ongoing employment; only three Board members were permitted to vote; two of those three resolved that Mr El-Hajje’s employment be terminated; but the purported resolution of the Board was invalid and of no effect.[13]
(m)Also on 14 February 2020 Mr El-Hajje had a telephone conversation with Mr El Masri in which Mr El Masri said he had nothing against Mr El-Hajje and that he was doing a great job; the manner in which Mr El-Hajje was hired was wrong; Rissalah College would need to reassess Mr El-Hajje’s employment; and Mr El-Hajje should not attend the School.[14] That constituted Rissalah College taking adverse action against Mr El-Hajje within the meaning of s 342 of the FW Act.[15] Mr El-Hajje has not returned to the School.[16]
(n)On 26 February 2020 Mr El-Hajje sent a text message to Mr El Masri to obtain clarity about the status of his employment. This amounts to complaints or inquires or both in relation to Mr El-Hajje’s employment, and, “[i]n the premises” Mr El-Hajje exercised a workplace right as defined in s 341(1)(c)(ii) of the FW Act.[17]
(o)On 26 February 2020 Mr El-Masri sent a text message to Mr El-Hajje in which he stated that at no time did any one terminate Mr El-Hajje’s employment or give him notice, but Mr El-Hajje decided to walk out after Mr El-Hajje’s appointment as CEO was not legal; as far as Mr El-Masri could tell, Rissalah College never entered into a formal contract with Mr El-Hajje; and, should Mr El-Hajje decide to turn up at the School and assert himself to be CEO, Rissalah College will have no alternative but to call the police and have Mr El-Hajje escorted out of the School.[18] This constituted Rissalah College taking adverse action against Mr El-Hajje within the meaning of s 342 of the FW Act.[19]
(p)Rissalah College took adverse action against Mr El-Hajje because he exercised his workplace rights.
[8] Statement of Claim, [38], [39]
[9] Statement of Claim, [40]
[10] Statement of Claim, [41]-[42]
[11] Statement of Claim, [43]-[44]
[12] Statement of Claim, [45]-[46]
[13] Statement of Claim, [47]
[14] Statement of Claim, [48]
[15] Statement of Claim, [80.a.]
[16] Statement of Claim, [49]
[17] Statement of Claim, [53]-[54]
[18] Statement of Claim, [55]
[19] Statement of Claim [80.b., f.,]
SEPARATE QUESTIONS AND PARTIES’ SUBMISSIONS
The respondents have formulated the questions that should be decided separately. With some modification, those questions are as follows (Questions):
1. Does s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) (FW Act) confer a workplace right for an employee to make a complaint or inquiry with respect to any matter which relates to his or her employment (as the applicant pleads in paragraphs 32, 33, 38, 39, 40, 43, 44, 52, and 53 of the statement of claim)? Or does s 341(1)(c)(ii) of FW Act require an identifiable entitlement to make such a complaint as held in PIA Mortgage Services vKing [2020] FCAFC 15; (2020) 274 FCR 225, at [12], [14], and [16]?
2. If s 341(1)(c)(ii) of the FW Act only confers a workplace right for an employee to make a complaint or inquiry where there is an identifiable entitlement to make such a complaint, has the applicant pleaded such an identifiable entitlement in paragraphs 32, 33, 38, 39, 40, 43, 44, and 52 of the statement of claim?
3. If the answer to [(b)] is “no”, should those paragraphs be struck out?
In their counsel’s written submissions, the respondents submit that although in paragraphs 32, 33, 39, 40, 43, 44, and 52 of the statement of claim Mr El-Hajje pleads he made complaints or inquiries and, for that reason, he exercised his workplace rights, the statement of claim does not explain how Mr El-Hajje was able to make such complaint or inquiry; and without that asserted ability, there is no workplace right within the meaning of s 341(1)(c)(ii) of the FW Act. The respondents particularly rely on the following passages from the judgment of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King:[20]
We respectfully agree with Dodds–Streeton J that s 341(1)(c)(ii) of the FW Act contemplates that not every complaint that an employee makes in relation to his or her employment is one the employee is “able to make” . . . .
On the understanding that s 341(1)(c)(ii) requires an entitlement or right to make a complaint in relation to the employee’s employment, there must be an identifiable source of that entitlement or right. . . .
. . . . There are three obvious potential sources of an employee’s ability to make complaints which fall outside s 341(1)(a), (b) and (c)(i), but within (c)(ii). Those sources are legislative provisions that are not workplace laws, contractual terms providing a right to make complaints and the general law.
[20] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, at [12], [14], [16]
The respondents refer to two cases that have followed the approach of Rangiah and Charlesworth JJ in PIA Mortgage,[21] and they also refer to Burley J in Salama v Sydney Trains holding that his Honour was bound to follow PIA Mortgage.[22]
[21] Lamont v University of Queensland (No 2) [2020] FCA 720; Maric v Ericsson Australia Pty Ltd [2020] FCA 452
[22] Salama v Sydney Trains [2021] FCA 251, at [102]
The respondents further submit that it would be appropriate to decide separately the Questions because it would promote the efficient management of the proceeding; and that is because, if the Questions are decided adversely to Mr El-Hajje, a substantial part of the case against the respondents will be disposed of without the need for a trial.
In his counsel’s written submissions, on the other hand, Mr El-Hajje submits that it would be inappropriate to separately decide the Questions, particularly before evidence has been filed. Mr El-Hajje submits that, in any event, the paragraphs of the statement of claim the Questions identify and which, in the alternative, the respondents apply to be struck out, go directly to the contract and obligations of the parties and, therefore, are substantially based in the general law.
SHOULD QUESTIONS BE SEPARATELY DETERMINED?
The Questions are formulated in relation to the allegations made in the statement of claim; and they are based on the following premises:
(a)It is an essential element of a cause of action based on an applicant’s having made a complaint or inquiry in relation to his or her employment within the meaning of s 341(1)(c)(ii) of the FW Act that there exists an identifiable entitlement to make the complaint or inquiry.
(b)A statement of claim must therefore plead facts on the basis of which an entitlement to make the complaint or inquiry can be identified.
(c)Mr El-Hajje does not allege in his statement of claim any facts on the basis of which an entitlement to make the complaint or inquiry can be identified.
In my opinion there would be utility in separately deciding the Questions; and the most convenient way would be by determining whether these three premises on which they are based are correct. If all three premises are correct it would follow that Mr El-Hajje would not have a reasonable cause of action based on the Rissalah College having contravened s 340(1) of the FW and, therefore, paragraphs 32, 33, 38, 39, 40, 43, 44, 52 and 53 of the statement of claim should be struck out.
Whether the premises on which the Questions are based are correct turns on the proper construction of “is able” in s 341(1)(c)(ii) of the FW Act.
CONSTRUCTION OF “IS ABLE”
The expression “is able” appears in three of the “workplace rights” s 341 of the FW Act identifies, these being: where a person “is able” to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; where a person “is able” to make a complaint or inquiry to a person or body having the capacity under the workplace law to seek compliance with that law or a workplace instrument; and where a person, being an employee, “is able” to make a complaint or inquiry in relation to his or her employment. Paragraph (a) of 341(1) of the FW Act identifies a fourth workplace right; but this workplace right is defined by the use of the words “is entitled”: a person has a workplace right under s 341(1)(a) of the FW Act if the person “is entitled to the benefit of, or has a role or responsibility under, a workplace law, a workplace instrument or order made by an industrial body”.
Justices of the Federal Court have considered the meaning of “is able” in s 341(1)(c)(ii) of the FW Act in a number of cases. It might not be inaccurate to say, however, that the meaning or meanings justices of the Federal Court have assigned to “is able” has not been based on any construction of the words “is able”, either considered by themselves, or in the immediate context of the text of s 341(1) of the FW Act. The point of departure of the Federal Court’s consideration of the meaning of “is able” has, in most cases, been the following passage from the judgment of Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (emphasis added): [23]
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.
[23] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, at [625]
Her Honour did not, in this passage, refer to the ordinary meaning of “able”. As I have noted elsewhere,[24] the Oxford English Dictionary states that, when used predicatively with an infinitive (which is the use of “able” in “is able” in s 341(1)(c) of the FW Act), the phrase means “having the means, capacity, or qualifications to do something; having sufficient power; in such a position that a particular action is possible; worthy, qualified, competent, capable”. The Oxford English Dictionary does refer to “able” also meaning “legally capable or qualified”, but this usage is said to be obsolete. Nor did Dodds-Streeton J refer to s 341(1)(a) of the FW Act which, not only uses the word “entitled”, but identifies the sources of the entitlement, namely, a “workplace law, workplace instrument or order made by an industrial body”. That s 341(1)(a) of the FW Act defines the workplace right by use of the words “is entitled”, and it explicitly identifies the source of the entitlement, might be a reason for doubting that “is able”, when used in s 341(1) of the FW Act to define the three other workplace rights, means an ability that is underpinned by an entitlement or a right. If “is able” was intended to mean an entitlement underpinned by some right or entitlement, it is reasonable to suppose Parliament would have used the words “is entitled” in s 341(1)(c)(ii), just as it does in s 341(1)(a); and, moreover, just as it also does in s 341(1)(a), Parliament would have identified the sources of the entitlement.
[24] Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610, at [52]
The basis of Dodds-Streeton J’s construction of “is able” appears to be the view that the reference in s 341(1)(c)(ii) of the FW Act to a person “is able” to make a complaint or inquiry implies circumstances where a person is “not able” to make complaints or inquiries. That view, however, does not imply that “a person . . . is able to make a complaint or enquiry in relation to his or her employment” only if such ability is underpinned by an entitlement or a right; at least not “[u]nder a legal system based on the common law, [where] ‘everybody is free to do anything, subject only to the provisions of the law’”.[25] That is so because if, as is the case under a legal system based on the common law, such as in Australia, a person is free to do anything, subject only to the provisions of the law, that freedom would include a person’s being able to make a complaint or inquiry in relation to his or her employment, subject only to any provisions of the law that prevent or restrict the person from making such complaint or inquiry. There would be no need to imply any entitlement or right to make a complaint or inquiry because a person would in any event be free to make a complaint or inquiry in relation to the person’s employment, subject to any provision of the law. Thus, rather than implying a distinction between, on the one hand, a person who has a right or entitlement to make a complaint in relation to his or her employment, and, on the other hand, a person who does not have a right or entitlement, the reference in s 341(1)(c)(ii) of the FW Act to “a person . . . is able to make a complaint or enquiry in relation to his or her employment”, to the extent it implies any distinction at all, implies a distinction between a person who is free to make a complaint or inquiry in relation to his employment, and a person who, because of some provision of the law, is prevented or restricted from exercising the freedom to make a complaint or inquiry. On this view “is able” in s 341(1)(b) and (c) of the FW Act simply means “not unable because of some provision of the law”.
[25] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, at pages 564-565
Assume, however, that “is able” to make a complaint or inquiry in s 341(1)(c)(ii) of the FW Act requires that such ability be underpinned by an entitlement or right. There is the principle to which I have referred that “[u]nder a legal system based on the common law, ‘everybody is free to do anything, subject only to the provisions of the law’”;[26] and that principle may properly be characterised as a right or entitlement.[27] On this view, a person “is able”, in the sense of having the right or entitlement, to make a complaint or inquiry in relation to his or her employment, unless there is some provision of the law that prohibits or restricts the person from making such complaint or enquiry. The result in construction, however, is the same: “is able” means “is not unable because of some provision of the law”.
[26] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, at pages 564-565
[27] There may be a distinction between entitlement and right, such distinction being the distinction Cave J identified in Allen v Flood ([1898] AC 1) between “freedom” or “liberty”, on the one hand, and “right”, on the other. Cave J said (at page 29): “Thus it was said that a man has a perfect right to fire off a gun, when all that was meant, apparently, was that a man has a freedom or liberty [that is, an entitlement] to fire off a gun, so long as he does not violate or infringe any one’s rights in doing so, which is a very different thing from a right, the violation or disturbance of which can be remedied or prevented by legal process”.
In Sultan v Consulate General of the Republic of Iraq, Sydney (No 2),[28] I concluded that an employee’s having made a complaint in relation to his employment was based on an entitlement under the general law, that entitlement being the principle that, under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law. I further said: [29]
This principle was stated in connection with speech and communication, and, although it applies generally, it is particularly apt to the context of s 341(1)(c) of the FW Act. That paragraph refers to the making of a complaint or inquiry, being acts that can only be effected by speech and other forms of communication.
[28] Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610, at [61]
[29] Sultan v Consulate General of the Republic of Iraq, Sydney (No 2) [2021] FCCA 1610, at [61]
Counsel for the respondents submits that to the extent in Sultan I decided that the source of an entitlement is the freedom all persons have to communicate, that decision is plainly wrong. The entitlement I found underpinned a person’s ability to make a complaint or inquiry was not the freedom all persons have to communicate, but the more basic principle that, under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law. I only noted that this principle is particularly apt to s 341(1)(c)(ii) of the FW Act, because that paragraph refers to the acts of complaining and making enquiries, acts I found that can only be effected by speech and other communication. In any event, counsel for the respondents did not explain why it is wrong to characterise as a right or entitlement the principle that, under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law.
What I say in the preceding four paragraphs is not relevant to what I am required to decide; and that is because, as I have noted, justices of the Federal Court have considered the meaning of “is able” by reference to the meaning Dodds-Streeton J in Shea assigned to those words. That is apparent from the cases on which the respondents rely. The principal authority on which the respondents rely is the judgment of Rangiah and Charlesworth JJ in PIA Mortgage. The current position, however, is that stated by the Full Federal Court in Alam v National Australia Bank Limited,[30] namely, that “this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in” Cigarette & Gift Warehouse Pty Ltd v Whelan”.[31]
[30] Alam v National Australia Bank Limited [2021] FCAFC 178, at [97]. The respondents drew my attention to Alam by email sent by their lawyers to my Associate on 11 April 2022.
[31] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16
In Whelan the Full Federal Court held that Collier J’s construction of s 341(1) in Whelan v Cigarette & Gift Warehouse Pty Ltd,[32] was “unremarkable and correct”.[33] In that case Collier J said:[34]
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] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [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.
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.
[32] Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, at [33], [34]
[33] Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16, at [28]
[34] Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, at [33], [34]
After quoting this passage from Collier J’s judgment the Full Federal Court in Alam said:[35]
It is evident that, in applying the approach of Dodds‑Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
[35] Alam v National Australia Bank Limited [2021] FCAFC 178, at [75]
The Full Federal Court also referred to the judgment of Rangiah and Charlesworth JJ in PIA Mortgage, and to the judgments in Cummins South Pacific Pty Ltd v Keenan,[36] where all three justices of the Full Federal Court were of the view that all three justices in PIA Mortgage Services Pty Ltd v King[37] construed “is able” in s 341(1)(c)(ii) as requiring a complaint to be “underpinned by a right or entitlement to make it”,[38] but where Bromberg and Mortimer JJ were of the view that that construction was incorrect, noting they would have refused to follow that construction if that would have been necessary to dispose of the appeal.[39] The Full Federal Court in Whelan did not accept the applicant’s submission that it should follow the approach of Bromberg and Mortimer JJ in Cummins.[40] The Full Federal Court, however, accepted “there is some difference between the principles endorsed by the Full Court in Whelan and the approach of the majority in PIA Mortgage”, but found that “any difference in the application of those two approaches is unlikely to be significant”.[41] Also relevant is the following passage:[42]
It does seem to us, with respect, that, in some of the decisions construing s 341(1)(c), the ability of an employee to make an “inquiry” has not been given the same prominence as has the ability of the employee to make a “complaint”. Section 341(1)(c) should be construed having regard to both limbs. It is not uncommon for instruments, whether they be an industrial award, a collective agreement such as an enterprise agreement, an order of an industrial body, or a contract of employment, to make provision for the making of complaints. It is, however, much less common for instruments of these kinds to make provision for the making of inquiries. This is a matter to which Jessup J referred in Murrihy at [143] (set out above), as did Bromberg J in Cummins South Pacific at [46] (also set out above). It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an “inquiry” in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source. In our view, this may point against a requirement that the ability to make a complaint or inquiry must itself have an instrumental source.
[36] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204
[37] PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15
[38] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [64] (Bromberg J), [209] (Mortimer J), [286] (Anastassiou J)
[39] Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, at [66] (Bromberg J), [209] (Mortimer J)
[40] Alam v National Australia Bank Limited [2021] FCAFC 178, at [93]
[41] Alam v National Australia Bank Limited [2021] FCAFC 178, at [94]
[42] Alam v National Australia Bank Limited [2021] FCAFC 178, at [95]
I do not interpret the Full Federal Court in Alam as having endorsed the view that “is able” in s 341(1)(c)(ii) of the FW Act necessarily requires that such ability be underpinned by an entitlement or legal right. I interpret the Full Federal Court either as having decided that “is able” in s 341(1)(c)(ii) of the FW Act does not necessarily require that an ability to make a complaint or inquiry in relation to a person’s employment be underpinned by an entitlement or legal right, or as having decided that it is an open question, to be determined in an appropriate case, whether an ability to make a complaint or inquiry in relation to a person’s employment must be underpinned by an entitlement or legal right. I rely on the Full Federal Court having stated or noted the following:
(a)The understanding of s 341(1)(c)(ii) of the FW Act the Full Federal Court expressed in Whelan was correct, that understanding being that Collier J’s construction of s 341(1) of the FW Act was “unremarkable and correct”.
(b)Collier J did not proceed on the basis that either s 341(1)(c)(ii) of the FW Act or Shea required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment, it being sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment provides. Given that s 341(1)(c)(ii) requires that the complaint or inquiry be “in relation” to the person’s employment, that denies “is able” any additional meaning than that conveyed by “in relation”, at least where the complaint or enquiry relates to the subject matter for which the contract of employment may relate.
(c)Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c)(ii) of the FW Act.
(d)In some of the decisions construing s 341(1)(c) of the FW Act, the ability of an employee to make an “inquiry” has not been given the same prominence as has the ability of the employee to make a “complaint”, noting that it is much less common for industrial instruments to make provision for the making of inquiries.
(e)There is some difference between the principles endorsed by the Full Federal Court in Whelan and the approach of the majority in PIA Mortgage, although any difference in the application of those two approaches is unlikely to be significant.
DETERMINATION OF QUESTIONS
The following conclusions follow:
(a)It is not, or it is reasonably arguable that it is not, an essential element of a cause of action based on an applicant’s having made a complaint or inquiry in relation to his or her employment within the meaning of s 341(1)(c)(ii) of the FW Act, that there exists an identifiable entitlement to make the complaint or inquiry. It is therefore not necessary, or it is reasonably arguable that it is not necessary, for an applicant alleging a contravention of s 340(1) of the FW Act to plead facts on the basis of which an entitlement to make the complaint or inquiry can be identified.
(b)Assuming, contrary to (a), it is an essential element of a cause of action based on an applicant’s having made a complaint or inquiry in relation to his or her employment within the meaning of s 341(1)(c)(ii) of the FW Act, that there exists an identifiable entitlement to make the complaint or inquiry, such entitlement will be implied, or it is reasonably arguable that such entitlement will be implied, on the basis of the principle that under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law. In those circumstances it would not be necessary, or it is reasonably arguable that it would not be necessary, for an applicant alleging a contravention of s 340(1) of the FW Act to plead facts on the basis of which an entitlement to make the complaint or inquiry can be identified, because the right or entitlement arises is an incident of Australia’s legal system, being one that is based on the common law. The onus would be on the respondent to allege matters on the basis of which it can reasonably be alleged that the person is not permitted or is otherwise restricted from making a complaint or inquiry in relation to his or her employment.
In the light of my conclusions, I need only to decide the first of the Questions; and the decision I propose to make is that s 341(1)(c)(ii) of the FW Act does not require, or it is reasonably arguable, that it does not require an identifiable entitlement to make a complaint or inquiry in relation to a person’s employment; or, to the extent it does, such entitlement or right is to be implied, or it is reasonably arguable that such right is to be implied on the basis of the principle that under a legal system based on the common law, everybody is free to do anything, subject only to the provisions of the law.
DISPOSITION
I will order that the Questions be separately determined, and decide the Questions in the manner stated in the previous paragraph of these reasons. I will also set the matter down for directions at 9:30 am on 21 April 2022.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 April 2022
6
16
0