The Fair Work Act 2009 (Cth) (the Act) contains a wide range of protections for employees. These manifest through express provision, the stipulation of minimum standards (National Employment Standards), the delimiting of employers’ scope of action, or combinations of these. While the protections are apparent in the Act’s words, their individual effectiveness turns on how they are interpreted and applied.
Section 341(1)(c)(ii) of the Act affords protection (pursuant to s 340(1)) for employees to complain or inquire about their employment without being subject to retribution from their employer. In considering its operation, Neil Napper and Luke Scandrett reviewed recent leading cases, including Henry v Leighton Admin Services Pty Ltd  FCCA 1923 and Walsh v Greater Metropolitan Cemeteries Trust (No 2)  FCA 456. This case law indicates how s 341(1)(c)(ii) may be enlivened:
- an employee has the “mere capacity or capability” to make a complaint or inquiry; and
- the employee makes a complaint or inquiry to their employer (nothing is required in the way of formality in making the complaint); and
- the complaint has “some bearing” on the employee’s own employment.
These requirements suggest it is a fairly straightforward process for an employee to avail themselves of the protection under s 341(1)(c)(ii) – which would seem to be as it should be. Meanwhile, the protection against unfair dismissal when a redundancy is not genuine, appears to operate in a manner more favourable to employers.
Section 385 stipulates that a dismissal is unfair if it was (among other things) not a case of genuine redundancy. Section 389(1)(a) sets out when a “genuine redundancy” occurs. Bruce Taylor considered the operation of s 389(1)(a) via an examination of the impact of the Ulan Coal Mines Ltd v Howarth  FWAFB 3488 decision.
Taylor suggests the way in which s 389(1)(a) is required to be interpreted (including according to the Fair Work Commission Benchbook on Unfair Dismissals) on the question of whether a job is no longer required to be performed, provides a backdoor means for employers to rid themselves of existing employees and replace them with cheaper subcontractors. He pulls no punches, arguing that the wording of the section should not be “twisted by the Commission to allow injustice to employed workers being dumped from their jobs.”
With recent well-publicised instances of “underpayment abuse” of workers in mind – think 7Eleven and the Woolworths trolley collectors – Taylor concludes:
“Interpreting s 389(1)(a) on its face would certainly go a long way to discourage the abuse of workers and the flood of underpayment we see currently hitting the headlines.”
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