FWR Amendments
36 The applicant submitted that the FWR amendments, in paragraphs 12A to 12C, do not introduce a new cause of action as they only provide for additional workplace rights upon which adverse action was taken against him.
37 The respondents argued that the amendments are hopeless and unable to succeed. They contended that safety net contractual entitlements are not workplace rights pursuant to s 341(1)(a) of the FWA and that s 542 is the mechanism by which the applicant can make an application to enforce such entitlements. In support of this, the respondents referred to the Explanatory Memorandum of the Fair Work Bill 2008 which states that the purpose of s 542 of the FWA is to, "provide a simple mechanism for national system employees and employers to enforce safety net contractual entitlements in a federal court". The respondents also noted that the applicant does not allege that an application pursuant to s 453 of the FWA has been made and, therefore, the applicant has not exercised any workplace rights.
38 The applicant's oral submissions included that he had an arguable case that the safety net contractual entitlements were workplace rights. In that respect, he referred to Martens v Indigenous Land Corporation [2017] FCCA 896. At [25], Judge Jarrett concluded:
In my view, Mr Martens had an entitlement under the Fair Work Act (a workplace law) to apply to the Federal Court or this Court to enforce an entitlement that arose under s 542(1) of the Act. That entitlement - a safety net contractual entitlement - arose not from his contract of employment, although the existence of a contractual term about it was a necessary precondition to the statutory entitlement, but from the relevant workplace law itself - s 543 of the Fair Work Act.
39 The applicant also referred to Aitken v Virgin Australia Airlines (2013) 277 FLR 156; [2013] FCCA 981 and Roohizadegan v TechnologyOne Ltd (No 2) [2020] FCA 1407 as cases in which safety net contractual entitlements were considered workplace rights. The applicant did not refer to any particular passages in those cases. However, it appears that the applicant may have been referring to [57] - [62] of Roohizadegan, wherein Kerr J stated:
Having regard to the terms of Mr Roohizadegan's contract and those policies, I am satisfied Mr Roohizadegan had the entitlement upon which he relies. My conclusion in that regard is consistent with the reasoning of Dodds-Streeton J in Shea v TRUenergy Pty Ltd (No 6) [2014] FCA 271 at [640].
I am satisfied for those reasons that Mr Roohizadegan possessed and was capable of exercising a relevant "workplace right".
He was accordingly protected by s 341(1)(c)(ii) against adverse action being taken against him for the reason that he had made a complaint in relation to his employment.
The same applies with respect to any complaint Mr Roohizadegan made in good faith regarding his contractual entitlements. In that regard I respectfully adopt the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225; PIA Mortgage Services Pty Ltd v King 292 IR 317 at [19]-[20]:
"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 Dodds-Streeton J's 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."
Again, I do not apprehend the Respondents to take issue with that proposition.
I further take the Respondents to accept that, to the extent that Mr Roohizadegan did exercise a workplace right by complaining inter-alia about his being bullied by one or more other employees of TechnologyOne or about his safety net contractual entitlements, the presumption provided for by s 361(1) of the Fair Work Act applies in these proceedings. …
40 The respondents denied that the respondent's cases stood for that position. In that regard, the respondents referred to Barnett v Territory Insurance Office (2011) 196 FCR 116 wherein Mansfield J stated at [21] - [23]:
The applicant's contention in this case is a straightforward and accessible one. He says that the contract itself is recognised by the FW Act because the FW Act recognises that some employment relationships will continue to be governed by the terms of the contract itself, subject to their terms being suppressed or overridden by applicable provisions of the FW Act, such as the National Employment Standards (NES) prescribed by ss 43 and 61. Section 12 includes a definition of an "award/agreement free employee" as someone to whom neither a "modern award" nor an "enterprise agreement" applies. Section 43 moreover clearly recognises that there will be employees whose employment is covered by a "fairwork instrument" as defined in s 12, that is by a modern award, an enterprise agreement, a workplace determination or an FWA order. Each of those types of instrument will be instruments made under the FW Act, so as to be "workplace instruments". The FW Act also recognises that there will be employees whose employment is not covered by such an instrument. In addition, and as already mentioned above, s 382 dealing with unfair dismissal creates additional rights which will apply to a person not covered by such an instrument made under the FW Act, including a person whose employment is covered simply by a contract of employment, provided the remuneration package does not exceed the "high income threshold".
In the sense of recognition by acknowledging the existence of, and treating as valid, the terms of a contract of employment, subject to the operation of the FW Act, it may fairly be said that the FW Act recognises the contract of employment. This is the broad interpretation of the first limb of the definition of "workplace instrument" as favoured by the applicant. Such a proposition also, it is argued, should be accepted because it is consistent with the objects of the FW Act as expressed in s 3 and as explained in the Minister's Second Reading Speech on the Fair Work Bill 2008 (Cth) (House of Representatives, Debates, 25 November 2008 at 11193).
However, in my judgment, the concept of recognition in the definition of "workplace instrument" does not have that expanded meaning. I do not think that such a meaning can properly be derived from the context and background to that expression, or having regard to other considerations to which I refer below.
41 The respondents also referred to Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 wherein Collier J referred to Barnett and summarised its conclusions at [40]. In particular, her Honour noted that Mansfield J concluded that it is "unlikely that recognition by a "workplace law" was intended to extent to the contract of employment itself" and that the "Fair Work Act did not enliven the contractual rights of the parties".
42 This issue does not therefore appear to be settled so as to render the proposed amendments futile or hopeless. There is a clear controversy between the parties. The applicant argued that the FWR amendments, in paragraphs 12A to 12C, do not introduce a new cause of action as the amendments merely allege further workplace rights for which the first respondent terminated the applicant's employment. Accordingly, the amendments should be allowed.