That decision was Harrison v In Control Pty Ltd 
FMCA 149, where the Federal Circuit Court held that in order for a
complaint by an employee to be a "workplace right"
capable of protection under the FW Act, the complaint must have a
statutory or contractual basis which, if made to an external body,
would give that body jurisdiction to investigate and seek
compliance under a relevant workplace law or instrument.
To recap, section 341(1)(c)(ii) of the FW Act provides that an
employee has a "workplace right" if the employee
is able to make a complaint or inquiry in relation to his or her
employment. An employer contravenes the FW Act if the employer
takes "adverse action" against the employee
(say, by dismissing the employee) because of the employee's
However, in an apparent conflicting decision to Harrison, the
Federal Circuit Court in Devonshire v Magellan Powertronics Pty
Ltd & Ors  FMCA held that a simple complaint by an
employee to his or her employer can be a "workplace
In this case, from December 2011 to January 2012 the employee
made a number of inquiries to her employer, Magellan Powertronics
Pty Ltd, in relation to her remuneration. In various emails, the
employee asserted that she was not being paid the agreed salary and
In January 2012, Magellan terminated the employee's
employment for reasons which included the refusal to wear a company
uniform and the employee's purported lack of sales.
The employee then commenced a General Protections claim against
Magellan alleging Magellan had taken adverse action against her
because of her workplace right to make a complaint or inquiry in
relation to her employment under section 341(1)(c)(ii) of the FW
In considering whether the employee had jurisdiction to continue
her claim, the Court held that the employee had a
"workplace right" under the FW Act for two
The employee was entitled to the benefit of a
"workplace law" – in this case being
section 323 of the FW Act which requires an employer to pay an
employee amounts payable to the employee in relation to the
performance of work in full and at least monthly; and
The employee's complaint or inquiry directed to her
employer (in relation to her pay) was a workplace right for the
purposes of section 341(1)(c)(ii) of the FW Act.
Relevantly, the Court distinguished previous decisions which
suggested that the relevant section of the FW Act required some
formal mechanism or provision for a complaint or enquiry to be
made. In considering the Explanatory Memorandum to the FW Act, the
Court held that the ordinary meaning of the provision included the
making of a complaint directly to an employer by an employee in
relation to their employment.
It has been suggested that, when read with the Harrison
decision, complaints or inquiries in relation to employment must at
least concern matters which are personal to the employee (as
opposed to management decisions which do not directly affect the
employee) in order to be considered as protected workplace
However, until the apparent conflict between these decisions is
resolved, organisations should proceed on the basis that any
complaints by employees may be capable of giving rise to an adverse
action claim (even where such a complaint is not made pursuant to a
formal mechanism or capable of being enforced by an external body).
Accordingly employers must exercise caution in disciplining or
dismissing employees who have made complaints in the past, and
ensure decisions which affect such employees are not only clearly
documented but cannot be linked to the exercise of workplace
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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