Maric v Ericsson Australia Pty Ltd

STEWARD J: 1 This is an unusual case. It raised, by the posing of two preliminary questions of law, issues of some complexity and importance with respect to the operation of the Fair Work Act 2009 (Cth.) (the "FW Act"). In March 2019, the applicant considered an offer of employment made to her by the respondent. For that purpose, the applicant was acknowledged by all parties to have been a "prospective employee" of the respondent as that term is relevantly used in the FW Act. Ultimately, in early April 2019, the respondent declined to employ the applicant. The applicant alleges that the respondent took "adverse action" against her when she exercised four alleged "workplace rights" during the course of negotiating her prospective employment. The adverse action on which the applicant relies is the respondent's refusal to employ her. The applicant now seeks the payment to her by the respondent of damages, compensation and penalties. 2 The parties agreed that the first step in this proceeding should be for the Court to answer two preliminary questions of law based upon an agreed set of facts and a joint tender bundle. The purpose of proceeding in this way was to avoid the potential incurrence of unnecessary cost. The agreed questions were as follows: 1. As a prospective employee of the Respondent and by reason of subsection 341(3) of the Fair Work Act 2009 (Cth) (FW Act), did the Applicant have a workplace right constituted by her being able to make a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act in relation to her prospective employment? 2. If yes, are the First and/or Second and/or Third and/or Fourth Alleged Inquiry or Inquiries capable of being a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act? 3 The First, Second, Third and Fourth Alleged Inquiries are defined terms in the Statement of Agreed Facts set out below. 4 The first question was drafted to test a broad proposition advanced by the respondent that s. 341(1)(c)(ii) of the FW Act (reproduced below) does not apply to "prospective employees", as that term is used in s. 341(3) of the FW Act (also reproduced below). The second question assumes that s. 341(1)(c)(ii) can apply to prospective employees, and addresses whether the particular inquiries made by the applicant here were on each occasion the exercise of a "workplace right" (as defined). I also observe that whilst each question referred to both a complaint and an inquiry, it was accepted that no complaints had been made by the applicant here; rather, she had only made inquiries. It follows that each question should be read as confined to the making of an inquiry. 5 I note that the applicant has also pleaded claims in reliance upon s. 351 of the FW Act and s. 31 of the Australian Consumer Law as contained in Sch. 2 to the Competition and Consumer Act 2010 (Cth.) (the "A.C.L."). The latter section provides, in general terms, that a person must not, in relation to employment that is offered, engage in conduct that is liable to mislead a person seeking employment. Those claims are not considered in these reasons, and may need to be addressed on another occasion. 6 I should otherwise record and thank the parties for the high degree of mutual co-operation they displayed in agreeing upon both the questions to be answered and upon the necessary facts.

Relevant Statutory Provisions 7 This dispute arises under Div. 3 of Pt. 3-1 of the FW Act. 8 Section 340 of the FW Act provides: Protection (1) A person must not take adverse action against another person: (a) 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; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4‑1). 9 Section 342(1) of the FW Act relevantly defines the term "adverse action" by reference to a table. Item 2 of that table applies to a prospective employee. Amongst other things, it is adverse action for a prospective employer to refuse to employ a prospective employee. 10 Section 341 of the FW Act is central to this case. Section 341(1) defines the term "workplace right" in the following way: 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. 11 Section 341(3) addresses "prospective employees". It creates a statutory fiction, the reach of which is in dispute before me. It is in the following terms: Prospective employees taken to have workplace rights (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer. Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement. 12 Sections 341(4) and (5) create exceptions relating to prospective employees. They are not said to be directly relevant to this case, but the applicant nonetheless relied upon them. They provide as follows: Exceptions relating to prospective employees (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings. (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2-8 or 6-3A (which deal with transfer of business). 13 The following provisions were also relied upon by the applicant. First, she relied upon s. 20 of the Equal Opportunity Act 2010 (Vic.) (the "Equal Opportunity Act"). That provision is in the following form: Employer must make reasonable adjustments for person offered employment or employee with a disability (1) This section applies to a person with a disability who - (a) is offered employment or is an employee; and (b) requires adjustments in order to perform the genuine and reasonable requirements of the employment. (2) The employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made. Example An employer may be able to make reasonable adjustments for a person or employee with a disability by - • providing a ramp for access to the workplace or a particular software package for computers; • modifying work instructions or reference manuals; • allowing the person or employee to be absent during work hours for rehabilitation, assessment or treatment; • allowing the person or employee to take breaks more frequently. (3) In determining whether an adjustment is reasonable, all relevant facts and circumstances must be considered, including - (a) the person's or employee's circumstances, including the nature of his or her disability; and (b) the nature of the employee's role or the role that is being offered; and (c) the nature of the adjustment required to accommodate the person's or employee's disability; an (d) the financial circumstances of the employer; and (e) the size and nature of the workplace and the employer's business; and (f) the effect on the workplace and the employer's business of making the adjustment including - (i) the financial impact of doing so; (ii) the number of persons who would benefit from or be disadvantaged by doing so; (iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and (g) the consequences for the employer of making the adjustment; and (h) the consequences for the person or employee of not making the adjustment; and (i) any relevant action plan made under Part 3 of the Disability Discrimination Act 1992 of the Commonwealth; and (j) if the employer is a public sector body within the meaning of section 38 of the Disability Act 2006 , any relevant Disability Action Plan made under that section. (4) For the purposes of subsection (2), in determining whether or not the person or employee could or can adequately perform the genuine and reasonable requirements of the employment, all the relevant facts and circumstances must be considered, including - (a) the person's or employee's training, qualifications and experience; (b) the person's or employee's current performance in the employment, if applicable. (5) An employer is not required to make an adjustment under subsection (2) to the extent that the employer has complied with, or has been exempted from compliance with, a relevant disability standard made under the Disability Discrimination Act 1992 of the Commonwealth in relation to the subject matter of that adjustment. (6) An employer is not required to make an adjustment under subsection (2) that relates to a building or land to the extent that - (a) a determination has been made under section 160B of the Building Act 1993 in relation to that building or land, in relation to the subject matter of that adjustment; and (b) the employer complies with the determination. 14 The applicant also relied upon ss. 5 and 15 of the Disability Discrimination Act 1992 (Cth.) (the "Disability Discrimination Act"). Those provisions provide as follows: 5 Direct disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. … 15 Discrimination in employment (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person's disability: (a) in the arrangements made for the purpose of determining who should be offered employment; or (b) in determining who should be offered employment; or (c) in the terms or conditions on which employment is offered. (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment. (3) Neither paragraph (1)(a) nor (b) renders it unlawful for a person to discriminate against another person, on the ground of the other person's disability, in connection with employment to perform domestic duties on the premises on which the first-mentioned person resides.

Statement of Agreed Facts 15 The Statement of Agreed Facts should be set out in full. It is as follows: 1. The Respondent is and was at all relevant times a national system employer as defined in section 14 of the Fair Work Act 2009 (Cth) (FW Act). 2. The Applicant was a 'prospective employee' of the Respondent within the meaning of section 341(3) and item 2 of the table in section 342(1) of the FW Act. The Respondent has not, at any material time, employed the Applicant. 3. The Respondent was a 'prospective employer' of the Applicant within the meaning of item 2 of the table in section 342(1) of the FW Act. 4. On 18 March 2019 at 12:38 pm, Ms Carolyn Larsen of the Respondent sent an email to the Applicant offering her employment with the Respondent (the Offer) in the position of Health, Safety and Environment Specialist (the Position). The Offer stated that a formal contract will be produced upon receipt of the Applicant's acceptance of the Offer and requested, among other things, that the Applicant confirm that she is happy to proceed with the start date and daily rate set out in the Offer, provide a copy of her passport or confirmation of her work rights and provide her residential address. 5. On 18 March 2019 at 1:48 pm, the Applicant responded to the Offer by sending an email to Ms Larsen attaching her driver's licence and providing her postal address (but not addressing the other matters raised in the email setting out the Offer). 6. On 19 March 2019, the Respondent sent the Applicant an email attaching a proposed contract of employment (the Proposed Contract). 7. There were terms of the Proposed Contract that required the Applicant to acknowledge that: (a) prior to entering into the agreement she had a reasonable opportunity to obtain independent legal advice regarding the contents of the agreement; and (b) she had sufficient time to review the agreement and understand its effect. 8. On or around 24 March 2019, the Applicant claims to have sought legal advice in relation to the Proposed Contract (the First Alleged Inquiry). 9. Prior to being offered employment by the Respondent, the Applicant made the Respondent aware that she had a pre-existing back and knee injury (Alleged Injuries). The Respondent made the Applicant aware that adjustable desks and seating were available for all employees. 10. On 24 March 2019, the Applicant sent an email to Ms Larsen and Mr Paul Tilley of the Respondent advising that: (a) she would be obtaining legal advice in relation to the Proposed Contract; and (b) requesting her work station be set up ergonomically because of her Alleged Injuries. (collectively, the Second Alleged Inquiries). 11. On 26 and 27 March 2019 there were emails and discussions between the Applicant and Mr Tilley about a suitable commencement date. On 27 March 2019, the Applicant emailed Mr Tilley and Ms Larsen advising that she had 'penned in Monday 6 May 2019 as the new start date'. The Applicant had not, at this stage, signed the Proposed Contract. 12. On or around 1 April 2019, the Applicant told Mr Tilley that she had received legal advice and requested some changes to the Proposed Contract. Mr Tilley asked the Applicant to put her requested changes in writing (the Third Alleged Inquiries). 13. At 12:22 am on 3 April 2019, the Applicant sent by email to Ms Larsen and Mr Tilley: (a) some requested amendments to the Proposed Contract; (b) a question about whether her employment would be covered by an award or enterprise agreement; and (c) a request for a 'workstation [to be] set up ergonomically including an electric sit/stand desk, therapod chair and anti-fatigue mat', (collectively, the Fourth Alleged Inquiries). The Applicant had not, at this stage, signed the Proposed Contract. 14. Ms Larsen called the Applicant later on 3 April 2019 and told the Applicant that the Respondent would not make changes to the Proposed Contract and had decided not to employ the Applicant. 15. The Proposed Contract was not executed. 16. By refusing to employ the Applicant, the Respondent took adverse action against the Applicant pursuant to paragraph (a) of column 2 of item 2 in the table in section 342(1) of the FW Act. 16 I took the word "alleged", which qualifies each of the four inquiries in this Statement, as indicating that there remained a dispute concerning whether each named inquiry was an "inquiry" for the purposes of s. 341(1)(c)(ii) of the FW Act, and not as some form of denial that the acts which comprised each alleged inquiry had taken place. As it happens, the respondent ultimately conceded that each of the Second, Third and Fourth Alleged Inquiries was an "inquiry" for the purposes of s. 341(1)(c)(ii) (but otherwise not conceding that each inquiry was the exercise of a workplace right), and only ever disputed that the First Alleged Inquiry had in fact ever taken place. 17 I have also decided to ignore paras. eight and 16 of the Statement of Agreed Facts. Paragraph eight does not set out an agreed fact but rather acknowledges a claim made. At best it is only a provisional fact about the seeking of legal advice. The Court, however, cannot act on a provisionally agreed fact for the purposes of determining the preliminary questions of law: see Harts Australia Ltd v. Commissioner of Taxation (2001) 109 F.C.R. 405 at 413-415 per Merkel J. (with whom Lee and Finn JJ. agreed). Because the contents of para. eight did not disclose an agreed fact, the applicant very properly abandoned any reliance upon the First Alleged Inquiry. Because para. 16 only recites a conclusion of law, I have treated it as an admission made by the respondent. 18 The parties also tendered into evidence a joint bundle comprising the Statement of Agreed Facts and four additional documents. Those documents were as follows: (a) An email dated 18 March 2019 from Ms Larsen, who would appear to be employed by the respondent as a Senior Recruitment Business Partner, to the applicant. Amongst other things, the email stated the following: Hi Dragica, Congratulations again!! I am pleased to confirm your offer of employment and the opportunity to join us at Ericsson Pty Ltd. … A formal contract will be produced upon receipt of acceptance of the above offer. A written contract will be sent to you confirming the above arrangements for signature. Should you accept can you please provide the following information in your reply email: • Written acceptance that you are happy to proceed with the above start date and daily rate • Copy of your passport • Confirmation of work rights (if not passport) • Confirmation of your residential address If you have any questions regarding the above please do not hesitate to contact me? (b) A letter sent by the respondent's "Head of HR AUNZ" to the applicant dated 18 March 2019 which was expressed to confirm the terms and conditions upon which the applicant was offered employment by the respondent (the "Proposed Contract"). Relevant clauses in the Proposed Contract included the following: 14. Anti-discrimination and Harassment Ericsson is an equal opportunity Employer and it aims to provide a workplace free from unlawful discrimination or harassment. You must at all times comply with the anti-discrimination and harassment policies of Ericsson, as published on the Ericsson ANZA intranet, and updated from time to time. … 20. Qualifications You warrant that: (i) all representations made by You as to your qualifications, experience and capabilities are true and correct; (ii) You have not consciously avoided disclosing any matter which may have materially influenced Ericsson's decision to appoint You; and (iii) You do not have any pre-existing medical or psychological condition which could affect your ability to perform their duties fully and effectively. … 22. Acceptance of the Contract of Employment Once You have carefully read, understood and agreed to the above terms and conditions, would You please sign the acknowledgment set out in the attached copy of this letter and return it, to the attention of … HR Operations C/- Ericsson Australia, Level 8/ 818 Bourke Street, Docklands 3008 to signify your acceptance of these terms. By signing the attached copy, You acknowledge that prior to entering into this agreement, You: a) have had a reasonable opportunity to obtain independent legal advice regarding the contents of this agreement; b) have had sufficient time to review the contents of this agreement and understand its effect; and c) have not been placed under any undue pressure to enter into this agreement. You also acknowledge that Ericsson relies upon the warranty in this clause in the execution of this agreement. (c) An email sent by the applicant to certain officers of the respondent on 24 March 2019 in which, amongst other things, the applicant stated: Thank you for the call on Friday 22nd March and clarifying aspects of the contract As per the clause on the final page of the contract (a) I advised you that I will obtain independent legal advice. I anticipate sign off on the contract either Monday or Tuesday. I will contact you if there are any further questions … [Mr Tilley] - I noted the section in the New Employee Information Form regarding pre-existing injury, as discussed I do have a back and knee injury. The reasonable adjustment I require in an office-based workplace is a workstation to be set up ergonomically (sit/stand) I am comfortable to undergo a workstation assessment by an occupational rehabilitation provider or the like, if required (Errors in original.) (d) An email sent by the applicant on 3 April 2019 to certain officers of the respondent which proposed the making of several changes to the text of the Proposed Contract. One of the changes included the following: Clause 20 (iii) advice - amend to reflect "you do not have any pre-existing medical or psychological condition which could affect your ability to perform the inherent requirements of your role after reasonable adjustments have been made" Please note: a reasonable adjustment that I require is a workstation to be set up ergonomically including an electric sit/stand desk, therapod chair and anti-fatigue mat. I am comfortable to fund a therapod chair and anti­fatigue mat, if required

The Contentions of the Parties 19 I was well assisted by the submissions of the parties which I summarise below.

The applicant's submissions 20 As can be discerned from the Statement of Agreed Facts, the applicant's case turns on the contention that each of the three alleged inquiries (namely the Second, Third and Fourth Inquiries) were "inquiries" in relation to her prospective employment for the purposes of s. 341(1)(c)(ii) of the FW Act, and, as such, constituted, on each occasion, the exercise of a "workplace right" (as defined). 21 A key aspect of the dispute before me was whether I should read the statutory fiction created by s. 341(3) of the FW Act as inapplicable to s. 341(1)(c)(ii) because of the presence of the following qualifying words in the latter section: "if the person is an employee". The respondent contends that these words were intended to exclude prospective employees from relying upon s. 341(1)(c)(ii). The applicant disagrees. She submits that there is no reason to depart from the ordinary and natural meaning of the language found in s. 341(3) which creates a statutory fiction applicable for all "workplace rights" as defined in s. 341(1) of the FW Act. She contends that the effect of s. 341(3) is that s. 341(1)(c)(ii) should be construed as follows: A person has a workplace right if the person is able to make a complaint or an inquiry if the person is an employee (or a prospective employee) - in relation to his or her employment (or in the case of a prospective employee in relation to his or her prospective employment). 22 The applicant submitted that this construction is supported by the legislative intent of Pt 3-1 of the FW Act. That intent, it was submitted, was summarised by Katzmann J. in Construction, Forestry, Mining & Energy Union v. Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, where her Honour stated at [35]: … The legislative intention is clear. The provisions of Part 3-1 are for the benefit of employees - to allow them to join a union and to engage in activities which would promote its interests or views, to take on certain roles or responsibilities and to make complaints or inquiries about work-related matters without the risk of reprisals: [Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212], per Gray and Bromberg JJ at [19]-[22]. Part 3-1 is protective and remedial in nature. For this reason, its terms should not be construed narrowly. See Barclay at [14]-[17]. A construction that would promote its purpose or object is to be preferred to one that would not: Acts Interpretation Act 1901 (Cth), s 15AA. The availability of a civil penalty does not detract from this approach. Cf. Waugh v Kippen (1986) 160 CLR 156. 23 Whether read literally or purposively, it was submitted that by reason of s. 341(3), a "prospective employee has the same rights in relation to his/her prospective employment as an employee would have in relation to his/her actual employment, including the right to make complaints or inquiries about that prospective employment" (emphasis in original). 24 Before me, the applicant submitted that if Parliament had wanted to limit the statutory fiction created by s. 341(3) to exclude complaints or inquiries which engage with s. 341(1)(c)(ii), it would have used express language in order to do so. Moreover, the applicant pointed out that there is nothing in the Explanatory Memorandum which accompanied the introduction into Parliament of the Fair Work Bill 2008 (Cth.) which in any way supported the narrower construction of s. 341(3) favoured by the respondent. The applicant also relied on parts of the "Bill Digest" prepared for the Fair Work Bill 2008 (Cth.). I have placed no weight on that Digest as there was no evidence that it was ever presented to either House of the Federal Parliament: see Commissioner of Taxation v. Murray (1990) 21 F.C.R. 436 at 449 per Hill J. (with whom Sheppard J. agreed at 436). 25 The applicant further submitted that the explanation for the presence of the words "if the person is an employee" in s. 341(1)(c)(ii) lay in the fact that adverse action can also be taken against independent contractors and employers. The words do the work of excluding those types of persons from the ambit of s. 341(1)(c)(ii) and no more than this. The applicant also relied on s. 341(4) and (5) as indicative of the wide application of s. 341(3). 26 It was also said that the alleged inquiries all fell within the dictionary definition of the word "inquiry". The applicant favoured the Macquarie Dictionary which defines an inquiry as "an investigation into a matter; the act of inquiring, or seeking information by questioning … a question, a query". 27 In her written submissions, the applicant next contended that it was not necessary for the inquiry to be founded on any source of legal entitlement. At the hearing before me, that proposition was not pressed. In any event, I reject it. It is not consistent with the decisions of the Full Court of this Court in Cigarette & Gift Warehouse Pty Ltd v. Whelan (2019) 268 F.C.R. 46 (at 55-56 [28]) and more recently in PIA Mortgage Services Pty Ltd v. King [2020] FCAFC 15. I shall return to consider PIA Mortgage Services. For the moment, I observe that the applicable principle was summarised by Dodds-Streeton J. in Shea v. TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 I.R. 1 at [29(f)] as follows: [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. The foregoing proposition, in my view, must also apply to the making of an inquiry (as distinct from a complaint) for the purposes of s. 341(1)(c)(ii). 28 In the alternative, it was submitted that each alleged inquiry was, in any event, founded upon a legal source of entitlement. In that respect, the applicant divided the alleged inquiries into three categories and identified the source of entitlement in each case as follows: (1) The first category concerned the inquiries which relate to the seeking of legal advice in relation to the Proposed Contract (which appeared to capture the first part of the Second Alleged Inquiries, although this was not entirely clear, and the Third Alleged Inquiries). It was said that the ability to make such inquiries arose under the Proposed Contract itself. Further, it was submitted that it should make no difference whether the contract in question had or had not been executed. (2) The second category concerned the inquiries which relate to the seeking by the applicant of reasonable adjustments to accommodate the "Alleged Injuries" (the second part of the Second Alleged Inquiries and part of the Fourth Alleged Inquiries). It was said in the applicant's written submissions that the sources for the making of these inquiries were the provisions dealing with an employer's obligation to provide reasonable adjustments for a person with a disability pursuant to s. 20 of the Equal Opportunity Act and ss. 5 and 15 of the Disability Discrimination Act. I note parenthetically that no claim against the respondent had been made by the applicant pursuant to either of those Acts. It was submitted that legislation is a recognised source of entitlement for the purposes of s. 341(1)(c)(ii) of the FW Act. In that respect, the applicant relied on the following passage from the judgment of Dodds-Streeton J. in Shea at [625]: 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. During the hearing, the applicant relied only upon the Equal Opportunity Act as a source of the capacity to make the second category of inquiries. (3) The third category concerned the applicant's question about whether she would be covered by a modern award or an enterprise agreement (part of the Fourth Alleged Inquiries). It was submitted that, whilst no award or enterprise agreement in fact ever relevantly applied to the applicant, her inquiries about this issue were "legitimate and reasonable inquiries for a prospective employee to make prior to accepting employment". It was said that the FW Act, in particular s. 341(1)(c)(ii), was the source of the ability to make this inquiry.

The respondent's submissions 29 In contrast, the respondent submitted that s. 341(3) should be construed narrowly. It emphasised that s. 341(3) is a deeming provision which needed to be strictly construed and only for the purpose for which resort is to be had to it: Federal Commissioner of Taxation v. Comber (1986) 10 F.C.R. 88. It also referred the Court to the decision of Peter Gibson J. in Marshall v. Kerr [1993] S.T.C. 360 at 364 wherein it was said that a statutory fiction should be construed to avoid "injustice or absurdity" (approved by Lord Walker in DCC Holdings (UK) Ltd v. Revenue and Customs Commissioners [2010] UKSC 58; [2011] 1 W.L.R. 44 at 58 and by White J. in Newcastle Airport Pty Ltd v. Chief Commissioner of State Revenue (NSW) [2014] NSWSC 1501; (2014) 99 A.T.R. 748). Here, it was said, if the applicant is correct, the adverse action regime would inappropriately extend to pre-contractual negotiations, in circumstances where the taking of adverse action has been previously characterised on a number of occasions by this Court as "quasi-criminal" in nature. Such a construction would impair the bargaining process. Thus, in its written submissions, the respondent observed: If the broad operation of the deeming provision in sub-section 341(3) of the FW Act for which the Applicant contends were accepted by the Court, that is a further reason, and one not identified in Shea (No 6) or other authorities which have so far considered sub-section 341(1)(c))(ii), why it cannot have been Parliament's intention that a complaint or inquiry is "at large". Otherwise, pre-contractual or pre-employment negotiations and discussions between prospective employees and employers, where they involve complaints or inquiries, could foreseeably give rise to employers being liable to civil penalties for a contravention of sub-section 340(1) of the FW Act. Such serious liability, for example, would arise in a simple and not uncommon case where, during the recruitment process, a prospective employee asks for high remuneration, or complains about low remuneration, and the employer decides, for that reason (potentially among other reasons concerning the suitability of the prospective employee for the position), not to employ that person. (Footnote omitted.) 30 It was submitted that the words "if the person is an employee" were deliberately inserted in s. 341(1)(c)(ii) to reflect a manifest Parliamentary intention to disable the statutory fiction created by s. 341(3) from applying to that subparagraph. Any other construction, it was said, would render those words entirely otiose, because the word "person" is sufficiently referred to at the commencement of s. 341(1), and if the applicant's construction is to be preferred, those words would otherwise have no work to do: Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 C.L.R. 355 at 382 [71]. No other workplace right is qualified by the need for the person to be an "employee". 31 The respondent also submitted that the Proposed Contract could not be the legal source for the making of any inquiries. That is because the parties never consummated their bargain; no contract with agreed terms was ever entered into. It further submitted that neither the Equal Opportunity Act nor the FW Act conferred any legal capacity to make the Second, Third and Fourth Inquiries. It relied upon the decision of the Full Federal Court in PIA Mortgage Services.

Submissions respecting the application of the statutory fiction to other workplace rights 32 The Court also asked the parties to supply it with a note as to how the statutory fiction created by s. 341(3) would practicably apply to the other workplace rights in s. 341(1)(a), (b) and (c)(i) of the FW Act. The Court is grateful to the parties for the written submissions subsequently received.

The applicant's submissions 33 The applicant's submissions noted that it had not identified any case law concerning the application of s. 341(3) to these workplace rights. It submitted that s. 341(1)(a) would need to be read as follows, if the statutory fiction were applicable: A prospective employer must not take adverse action against a prospective employee because the prospective employee will be entitled to the benefit of, or will have a role or responsibility under, a workplace law workplace instrument or order made by an industrial body once the employment commences. (Emphasis in original.) 34 The applicant submitted that s. 341(1)(a) could conceivably be breached if a prospective employer were to refuse to employ a prospective employee because that employee was in a position to be entitled to have reasonable adjustments made to the workplace in accordance with s. 20 of the Equal Opportunity Act. She submitted that s. 341(1)(b) could conceivably be breached if a prospective employee were offered employment conditional upon the employee entering an individual flexibility arrangement because, in such circumstances, the prospective employee would "clearly be able to initiate or participate in a process or proceeding pursuant to the FW Act to seek redress". She also submitted that s. 341(1)(c)(i) could conceivably be breached if a prospective employee were refused employment because they had raised the possibility of making a complaint once employed about, for example, an occupational health and safety issue at the prospective workplace. 35 A possible difficulty with these examples is that each workplace right conferred by s. 341(1)(a), (b) and (c)(i), in substance, contemplates the capacity to exercise such rights when the prospective employee is employed. Whilst s. 341(3) might deem a person to have the workplace rights he or she would have, if employed, the provision says nothing about the nature or type of workplace rights that can in fact be exercised before a person is employed. Having said that, s. 340(1)(a)(iii) makes it clear that a person cannot take adverse action against another person who "proposes" to exercise a workplace right. That might include a prospective employee who, prior to employment, declares that she or he, once employed, proposes to exercise a workplace right.

The respondent's submissions 36 In relation to s. 341(1)(a), the respondent referred the Court to certain cases concerning former s. 298K of the Workplace Relations Act 1996 (Cth.) (the "WR Act"). That provision was relevantly in the following form: Dismissal etc. of members of industrial associations etc. (1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: … (d) refuse to employ another person; … 37 Section 298L set out the relevant "prohibited reasons". Three of these used language which mirrors s. 341(1)(a), (b) and (c)(i). 38 The respondent referred the Court to two cases concerning s. 298K, namely Australasian Meat Industry Employees' Union v. Belandra Pty Ltd [2003] FCA 910; (2003) 126 I.R. 165 and Burnie Port Corporation Pty Ltd v. Maritime Union of Australia (2000) 104 F.C.R. 440. In the latter case, it was said that a prospective employer refused to employ a person because that person, if he had been employed, would have become entitled to the benefit of an industrial instrument, namely a certain enterprise bargaining agreement (whereas the employer wanted the prospective employee to be employed pursuant to another agreement). At the relevant time, s. 298L(1)(h) provided: (1) Conduct referred to in subsection 298K(1) ... is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: ... (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; … 39 Because the prospective employee had not yet become "entitled" to the benefit of the enterprise bargaining agreement, the Full Court of this Court decided that the prospective employer had not breached s. 298K of the WR Act. The Court said at 445 [23]: The ordinary and natural meaning of ss 298K(1) and 298L(1)(h) is that, when the proscribed conduct occurs, the person concerned has, or enjoys, a present or existing legal entitlement to the benefit of an industrial instrument or order. The benefit might relate to the proposed employment or might have resulted from prior employment, but at the time of the proscribed conduct it must be a benefit to which the person concerned is entitled. The meaning contended for by the Union would require that s 298L(1)(h) be construed as relating to a benefit to which the person concerned is or would be entitled if the proscribed conduct had not occurred. (Emphasis in original.) 40 It was submitted that the circumstance in Burnie Port Corporation could, if repeated, give rise to liability today by reason of s. 341(3) applying in respect of s. 341(1)(a) of the FW Act, the latter section being the legislative successor to s. 298L(1)(h) of the WR Act. 41 The respondent also submitted that applying s. 341(3) to the workplace right set out in s. 341(1)(b) was "conceptually difficult". That is because, until employed, it was difficult to conceive of how a prospective employee would be "able to" initiate or participate in a process or proceedings under a workplace law or instrument "at any time before that person becomes an actual employee". It was suggested that the provisions might be engaged where a prospective employee were to foreshadow a proposal to exercise this workplace right upon commencing employment. 42 The respondent otherwise noted that other laws confer upon a prospective employee an ability to initiate processes or proceedings against a prospective employer. They included making a complaint to the Australian Human Rights Commission or the making of an application to the Victorian Civil and Administrative Tribunal claiming breach of s. 16 of the Equal Opportunity Act (which prohibits discrimination against "job applicants"). It was said that workplace-type rights of the preceding kind exist without the need for the statutory fiction created by s. 341(3). 43 In relation to s. 341(1)(c)(i), the respondent submitted that it might be limited to cases where the prospective employee notifies a prospective employer of an intention to make an eligible complaint (for example to the Fair Work Commission) once employed, and then being denied employment for that reason (this appeared to be the same point raised by the applicant). However, the respondent noted that, as with the case of s. 341(1)(b), a prospective employee has, in any event, existing remedies against a prospective employer under other laws.

Disposition 44 As it happens, it is convenient to answer the second preliminary question first on the assumption that it is possible for the statutory fiction set out in s. 341(3) to apply to an inquiry which engages s. 341(1)(c)(ii) of the FW Act. 45 First, and for my part, I doubt whether all of the alleged inquiries here were each an "inquiry" for the purposes of s. 341(1)(c)(ii). The seeking of legal advice was certainly an "inquiry" (the first part of the Second Alleged Inquiries): see Murrihy v. Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 I.R. 307 at [143] per Jessup J. But the request to have the applicant's work station set up ergonomically (the second part of the Second Alleged Inquiries) was not directed to any investigation or examination made for the purpose of acquiring knowledge or information. It was rather a simple application made as part of the applicant's negotiation of her work conditions. Nor was the applicant's statement that she had received legal advice and wanted to make changes to the Proposed Contract an "inquiry" (the Third Alleged Inquiries). Again, what was said simply formed part of the negotiations between the parties. I otherwise accept that the question asked about the award or enterprise agreement was an "inquiry", but doubt whether the same could be said in relation to the requests for amendments to the Proposed Contract and to the request for an ergonomic work station (all part of the Fourth Alleged Inquiries). Nonetheless, in what follows I have assumed, in accordance with the wishes of the parties, that each of the Second, Third and Fourth Inquiries constituted an "inquiry" as that word is used in s. 341(1)(c)(ii) of the FW Act. 46 The next question for consideration is whether there existed some instrument or law which conferred on the applicant the capacity to make these inquiries. This element of s. 341(1)(c)(ii) has been recently explained by the Full Court of this Court in PIA Mortgage Services. In that case, it was held that the relevant employee had made two complaints in relation to his employment. In broad terms, the first complaint was that the employer had breached or had threatened to breach the employment contract; the second complaint was that the employee had been misled into accepting employment with the employer (in contravention of s. 31 of the A.C.L.). Both complaints followed the making of an offer by the relevant employer to terminate the employee's employment upon payment of four months' salary. Both complaints were expressed in an email sent by the employee to an officer of the employer and in a letter of demand sent by the employee's solicitors. 47 Rangiah and Charlesworth JJ., at [14], said the following in amplification of the principle articulated by Dodds-Streeton J. in Shea: 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. In Shea, Dodds-Streeton J did not suggest that the entitlement or right is limited to one arising under an instrument such as legislation, an industrial instrument, or a contract of employment. In fact, her Honour was careful not to attempt any exhaustive description of the source of the right to make a complaint or inquiry. Nor did her Honour suggest that the entitlement or right must be conferred expressly or directly by the source. 48 Their Honours decided that each of the two complaints I have described above was able to be made, in the sense required by s. 341(1)(c)(ii) of the FW Act, by the common law of contract and by the A.C.L. Their Honours reasoned at [19]-[20] as follows: Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is "able to make a complaint" about his or her employer's alleged breach of the contract of employment. That ability is "underpinned by" (to use Streeton-Dodds J's [sic] expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract. Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is "able to make a complaint" within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint. 49 I make two observations about the foregoing reasons. 50 First, I do not read the reasons of Rangiah and Charlesworth JJ. to mean that any complaint made about a contract, or any complaint made about the contravention of a statute, must always constitute a complaint that is "able to be made" by reason of that contract or that statutory provision. The reasons at [19]-[20] must be read in context. At [16], their Honours observed that the legal sources for an ability to make a complaint could include legislative provisions that are not workplace laws, contractual terms "providing a right to make complaints" and the "general law" (or the common law of Australia, including in that expression the doctrines of equity). Each category was then explained in more detail. 51 In relation to legislative provisions which are not workplace laws, Rangiah and Charlesworth JJ. said at [17]: In the first category, there are a number of legislative provisions of general application that encompass the making of complaints by employees in relation to their employment, but are not obviously identifiable as workplace laws. Examples are s 36(1) of the Privacy Act 1988 (Cth) (complaints about breaches of privacy) and s 1317AA of the Corporations Act 2001 (Cth) (disclosures by whistleblowers). The Explanatory Memorandum for the Fair Work Bill 2008 gives an example of s 341(1)(c)(ii) of the FW Act applying where an employee's hours are cut after writing a letter of complaint to the Australian Competition and Consumer Commission (ACCC) under a mistaken belief that it is able to investigate underpayments of wages. The example demonstrates that s 341(1)(c)(ii) may be engaged even where there is no statutory provision expressly or directly conferring a right to complain or commence proceedings. The example envisages that an entitlement to make a complaint arises from the allegation of underpayment, as well as the ACCC's function of investigating possible breaches of relevant statutory provisions. 52 The examples given in the foregoing paragraph are legislative provisions which confer an ability to make a complaint of some kind, such as the "whistleblower" provisions contained in Pt. 9.4AAA of the Corporations Act 2001 (Cth.). Of course, as their Honours recognise, the conferral of an ability to make a complaint by statute does not always need to be done expressly or directly: at [26]. Thus, where a statute supplies a cause of action, and a demand is made to advance that cause, that demand may constitute a complaint made by reason of that statute. In PIA Mortgage Services, the relevant statute was the A.C.L. 53 In relation to "contractual terms providing a right to make complaints", Rangiah and Charlesworth JJ. said at [18] as follows: Section 341(1)(c)(ii) also extends to contracts of employment. The distinction between a contract of employment, on the one hand, and, a workplace instrument or workplace law on the other, must be borne in mind. The provisions of the latter will rarely be implied terms of the former: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-422, 452-453. Section 341(1)(c)(ii) must at least apply where a contract of employment confers a right upon an employee to raise a grievance or otherwise complain about his or her employment … Again, their Honours are referring to a term in a contract which "confers a right upon an employee to raise a grievance or otherwise complain about his or her employment". 54 In relation to the making of a complaint under the common law of Australia, Rangiah and Charlesworth JJ. said at [19] what I have already reproduced above. Their Honours were there referring to the common law right to sue for breach of contract which, with respect, their Honours quite rightly observe to be the "ultimate form of complaint". 55 Secondly, this is not a case about "complaints" but about "inquiries". For 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 Mortgage Services. 56 I turn now to consider each of the alleged inquiries in accordance with the applicant's categories: (1) First category of inquiries (the first part of the Second Alleged Inquiries and the Third Alleged Inquiries) It was said that the source of the ability to seek legal advice and request drafting changes to the Proposed Contract was the Proposed Contract itself. I respectfully disagree. The Proposed Contract conferred no legal rights whatsoever. Indeed, its contents were never agreed. (2) Second category of inquiries (the second part of the Second Alleged Inquiries and part of the Fourth Alleged Inquiries) It was said that the source of the applicant's ability to request her work station be set up ergonomically was s. 20 of the Equal Opportunity Act and ss. 5 and 15 of the Disability Discrimination Act. I respectfully disagree. Section 20 provides a legal regime which requires an employer to make reasonable adjustments for a person offered employment or an employee with a disability if requested to do so. It sets out rules for determining how those adjustments are to be determined and when an employer may decline lawfully to provide them. Nothing in the provision conferred on the applicant here any additional legal ability to make the request (called an inquiry) that she made. She already, with respect, had an extant ability to do this (as to which see below). Section 5 of the Disability Discrimination Act provides that a failure to make reasonable adjustments can constitute a form of prohibited discrimination. Section 15 of that Act prohibits an employer from discriminating against a person on the ground of the other person's disability. Again, neither provision conferred on the applicant here an additional legal ability to make an inquiry about an ergonomic work station. Before me it was contended that it was implicit that s. 20 of the Equal Opportunity Act conferred an ability to make this inquiry. With respect, I disagree. There is nothing about the terms of s. 20 that justifies such an implication when every prospective employee already has, to the fullest extent necessary, such an ability. In reality, in this country, a prospective employee enjoys the liberty of making any inquiry he or she feels the need to make of his or her prospective employer. Of course, the existence of such a lawful capacity says nothing about the willingness of a prospective employee to make such inquiries. (3) Third category of inquiries (part of the Fourth Alleged Inquiries) It was said that the source of the applicant's ability to ask questions about whether her employment would be covered by an award or enterprise agreement was the FW Act itself. Again, I respectfully disagree. Nothing in the FW Act added to her undoubted ability to ask the question she posed about the applicability of any award or enterprise agreement. That conclusion also includes s. 341(1)(c)(ii) of the FW Act. That provision conferred no legal ability to make a complaint or inquiry. Rather, what it conferred was protection with respect to the making of such a complaint or inquiry. If that were not so, every complaint or inquiry made about a person's employment would be found to have a sufficient legal source of entitlement for the purposes of s. 341(1)(c)(ii) by reason of that very provision. With respect, such reasoning is somewhat self-fulfilling. It is also inconsistent with the decision in PIA Mortgage Services where the majority of the Court made it clear that the scope of s. 341(1)(c)(ii) did not apply to all complaints or inquiries. Rangiah and Charlesworth JJ. thus observed at [10]-[11] as follows: The objects of s 340 of the FW Act include providing an employee with protection against adverse action taken because he or she has exercised a workplace right. The provision evidently seeks to confer protection additional to any protection offered under the general law. Although the protection is broad in its scope, it has its limits, including by the definition in s 341 of "workplace right" … It must be accepted that the phrase "is able to make a complaint or inquiry" in the definition of "workplace right" in s 341(1)(c)(ii) of the FW Act operates to limit the scope of the protection provided … (Emphasis added.) 57 This is otherwise not a case like PIA Mortgage Services where an applicant alleges a breach of contract or a breach of some statutory provision which confers a cause of action, which in each case constitutes a complaint. This is a case about making inquiries. 58 Does the statutory fiction created by s. 341(3) of the FW Act require any different answer? I think not. Strictly speaking, the fiction mandated by s. 341(3) is not that the prospective employee is taken to be employed; rather, the prospective employee "is taken to have the workplace rights" he or she would have "if she or he were employed". Thus here, one must determine what workplace rights the applicant would have had if she had been employed by the respondent. The applicant is then deemed to have those workplace rights. The statutory fiction, whether or not it is to be strictly construed, thus practically requires one to assume that the applicant was employed by the respondent when in fact she never was. In my view, this requires one to determine the applicant's workplace rights under s. 341(1) on that fictional basis. 59 However, there is a problem insofar as the source of an ability to make a complaint or inquiry is said to arise from a contract of employment. Whilst s. 341(3) practically requires one to assume that the applicant was employed, it is otherwise silent as to the terms of that employment. That may not matter in a given case. But, here, the parties were in disagreement about the content of the Proposed Contract, and could not agree about its final form. I cannot assume that the contract which would have been entered into for the purposes of the statutory fiction would have taken the form of the Proposed Contract provided by the respondent. That form of the contract of employment was never accepted by the applicant. Nor can I assume that the contract which would have been entered into for the purposes of the statutory fiction would have assumed the form of the respondent's Proposed Contract as amended by the applicant. Those amendments were never accepted by the respondent. If the parties had continued to negotiate the content of a contract of employment, I can only guess at the outcome of their bargaining; it would be speculation to know what clauses would have survived, what clauses would have been deleted, and what clauses would have been amended. 60 On the fictional assumption that the applicant was employed by the respondent, I make the following conclusions: (a) the applicant has not shown that a term of a contract, which would have been entered into, conferred on her the legal capacity to seek legal advice and tell the respondent about that step (the first part of the Second Alleged Inquiries). Indeed, there is an air of unreality about this aspect of the applicant's case: the nature of her inquiry was about a draft contract of employment made, applying the statutory fiction, when she is taken to have already been employed; (b) my conclusion concerning the source of the ability to make the request for an ergonomic work station (the second part of the Second Alleged Inquiries and part of the Fourth Alleged Inquiries) does not change because one must assume that the applicant was employed by the respondent. Again, because her request concerned future employment there exists the same degree of artificiality concerning this aspect of the applicant's case; (c) the same foregoing conclusion applies to the Third Alleged Inquiries; and (d) I have already concluded that the FW Act conferred no legal ability to make an inquiry about the applicability of any award or enterprise agreement (part of the Fourth Alleged Inquiries). That conclusion does not need to change because one must assume that the applicant was employed by the respondent. 61 For these reasons, the answer to the second preliminary questions of law is "No". 62 It is otherwise unnecessary to address the submission made in relation to the first preliminary question, and presented by Mr Tracey of Counsel on behalf of the respondent, that the phrase "if the person is an employee" necessarily excludes the operation of s. 341(3) of the FW Act. However, I observe, there is much to be said for the proposition. That is because, for the foregoing reasons, there are real difficulties in applying s. 341(1)(c)(ii) to pre-contractual negotiations. It is also because: (a) the general protection given to the making of complaints or inquiries is expressly limited to those made by employees. It does not extend to complaints or inquiries made by employers or independent contractors. On one view, Parliament intended to reserve to employees only the protection conferred by s. 341(1)(c)(ii). That would suggest it was not intended to apply to prospective employees; (b) to the extent that there may be a conflict in the scope of ss. 341(3) and 341(1)(c)(ii), that conflict might need to be resolved by a reading down of one of the provisions. In that respect, the Full Court of this Court observed in Handbury Holdings Pty Ltd v. Federal Commissioner of Taxation (2009) 179 F.C.R. 569 at 577 [31] as follows: The problem of reconciling apparently conflicting parts of the statute is well-worn territory. That process of reconciling such provisions will often require a court, as Lord Herschell explained in Institute of Patent Agents v Lockwood [1894] AC 347 at 360, "to determine which is the leading provision, and which must give way". The High Court applied that dictum in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] and went on to say: Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Here, there is much to be said for the proposition that the "leading provision" is s. 341(1)(c)(ii) and it is thus s. 341(3) which "must give way" to its operation; and (c) finally, and in any event, each of what the parties called an inquiry concerned the applicant's prospective employment and not any actual employment. In such circumstances, it may be doubted whether such inquiries were made "in relation to" the applicant's fictional employment as mandated by s. 341(3). 63 As it may be the case that these potential difficulties could be overcome in a given case, it is not appropriate to say anything more about Mr Tracey's argument. 64 The answers to the questions of law should be: (1) "Not necessary to decide"; and (2) "No". 65 The parties agree that there should be no order as to costs. I will otherwise order, in accordance with the wishes of the parties, that the matter proceed to mediation even in the face of what may be a "limping appeal" from this decision. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.