Federal Court: Blowing the whistle to the media is not a freestanding workplace right
Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587
Summary
A recent decision from Perram J of the Federal Court has confirmed that, in the absence of specific protections under whistleblowing laws, blowing the whistle to the media about wrongdoing at work is not a workplace right for the purpose of general protections in the Fair Work Act 2009 (Cth). The judgment also contained interesting discussion about protection for political expression in anti-discrimination and employment law, indicating that further judicial clarity will be required. While the judgment also canvassed a range of other issues, this case note will be limited to Perram J’s discussion on whistleblowing and political expression.
Facts
Mr Quirk and Mr Miller (together the ‘Applicants’) were elected officials in and employees of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union (‘the CFMMEU’). On 16 October 2014, Mr Quirk and Mr Miller appeared on the Australian Broadcasting Corporation’s 7.30 program during which they accused the CFMMEU of corruption. Around the same date, the Applicants made similar remarks to a journalist from the Sydney Morning Herald, which then published the remarks. Neither had sought nor obtained approval from the CFMMEU before speaking to the media.
A meeting was held by the Divisional Executive of CFMMEU to consider internal charges against Mr Quirk and Mr Miller arising from their actions. The Divisional Executive concluded that the Applicants were guilty of gross misbehaviour within the meaning of CFMMEU’s rules and removed them from office. As a result, their employment also ceased.
The employment case – Federal Court proceedings
The Applicants’ case in respect to their employment included that:
the CFMMEU had contravened section 351 of the Fair Work Act 2009 (Cth) (‘FW Act’) by taking adverse action against them because of their political opinion; and
the CFMMEU had contravened section 340 by taking adverse action against them because they had exercised a workplace right (blowing the whistle to the media).
The Applicants failed on both grounds but were successful in their separate claim for damages for breach of contract.
Political opinion
The Applicants alleged that they were removed from office by the Divisional Executive because they expressed a political opinion when speaking with the media. The Applicants submitted that the CFMMEU had contravened section 351 of the FW Act by taking adverse action against them because of their political opinion.
Perram J said it was necessary to first consider three legal issues in response to this contention:
is the reference to ‘political opinion’ in section 351(1) a reference to the holding of a political opinion or does it extend to the expression of a political opinion?
where did the ‘adverse action’ take place for the purposes of section 351(2)(a) – was it New South Wales or was it Victoria?
if it took place in New South Wales what is the effect of section 351(2)(a) given that the Anti-Discrimination Act 1977 (NSW) does not make discrimination on the grounds of political opinion unlawful (and noting for the sake of ease of comprehension that discrimination on the grounds of ‘political belief or activity’ is unlawful in Victoria: Equal Opportunity Act 2010 (Vic) s 6(k)).
The Court found that the Applicants’ conduct in going on 7.30 to criticise the management of the Federal Union was inherently political in nature. In considering the issue, Perram J stated that section 351(1) of the FW Act mandates an inquiry into the causative relationship between the political opinion and the adverse action. The Court was satisfied that the statements made by the Applicants were manifestations of political opinion within the meaning of section 351(1) of the FW Act.
However, Perram J indicated that there were unresolved, difficult issues that might arise in other cases. His Honour observed:
For example, it is not difficult to imagine a workplace policy that forbids discussion of politics in the workplace. Where an employee, contrary to the policy, expresses a political opinion and is then dismissed by a manager who is unconcerned about the employee’s politics but very much concerned about the breach of the policy, then how should this be characterised? Has the employee been dismissed because she held a political opinion? Probably not. Has she been dismissed because she expressed a political opinion? The answer in one sense is yes for that is precisely why she was dismissed. On the other hand, there is a sense in which her dismissal was unrelated to her politics or, perhaps to put it another way, she was dismissed because she expressed a political opinion but not because of the substance of the political opinion she expressed.
Ultimately, the issue was not required to be resolved in the present case.
Discrimination - effect of 351(2)(a)
The Court found that section 351(2)(a) of the FW Act, which states that an adverse action against an employee because of their political opinion is permitted where it is not unlawful under anti-discrimination law in force in the place where the action is taken, requires the relevant State law specifically to permit the conduct or be sufficiently silent on the matter. Having held that the alleged adverse action took place in New South Wales, rather than under ‘the more accommodating discrimination regime obtaining in Victoria’, Perram J considered the Anti-Discrimination Act 1977 (NSW). As that law does not render discrimination on the grounds of political opinion unlawful, it could not constitute an infringement of section 351 to remove the Applicants from the Divisional Executive because of their political opinion.
Despite finding that the statements made on 7.30 were political in nature, Perram J was not satisfied that the Divisional Executive removed Mr Quirk and Mr Miller because of their political opinion. The Court found that CFMMEU removed the Applicants because of the perceived disloyalty in their decision to speak to the media without permission and therefore CFMMEU was not in breach of section 351 of the FW Act.
Exercise of workplace right
Section 340(1) of the FW Act provides the following protection:
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.
Under section 341(1) of the FW Act, a person has a workplace right if the person is able to make a complaint or inquiry if the person is an employee – in relation to his or her employment.[1]
The Court rejected the Applications’ submission that the definition of workplace right is sufficiently broad to include whistleblowing to the media. In finding that whistleblowing to the media is not the exercise of a workplace right, Perram J stated that the complaints referred to in section 341(1)(c) must be complaints which the person (here an employee) is ‘able to make’. The words ‘able to make’ were found to operate as a limitation on the range of complaints failing within the provision and refer to an entitlement or a right to make a complaint or inquiry. Subsequently, it was held that the Applicants failed to identify an entitlement or right conferred upon them by some kind of ‘legal material’ – whether it be legislative, contractual or legal norms – giving them the ability to take the steps that they did.
It should be noted that standalone whistleblowing law, such as the Public Interest Disclosure Act 2013 (Cth) and Corporations Act 2001 (Cth), explicitly provide for disclosure to the media in certain circumstances. In a case where those circumstances had arisen, the finding in relation to the intersection with the FW Act may well be different. However, in Quirk, it was not argued by the Applicants that they had any rights under whistleblowing law.
The full text of the decision can be found here.
Harriet Forster is a Secondee Lawyer and Kieran Pender is a Senior Lawyer at the Human Rights Law Centre.
[1] FW Act, s 341(1)(c)(ii).