Wednesday, January 13, 2016

The Achievements of Hilda Zhang’s Legal Struggles against the Unconstitutional Judgment of Her Case—Barristers and Judges Hold that the New Laws Have Undone the Damage Made by the Judgment of Her Case

On 28 January 2015 Sydney Barrister Jim Pearce of Denman Chambers presented his paper, An Update on “Adverse Action”Under Section 340 of the Fair Work Act 2009 on an international conference—North South Conference Marrakesh, Morocco. He referred to Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347, 351 [25] and analysed how section 341(1)(c)(ii) has undone the damage made by the Federal Court in Zhang’s case in 2005 to the workers’ rights when the Full Court interpreted s. 170CK(2)(e), which was later numbered as s. 659(2)(e), of the Workplace Relations Act 1996 (Cth).

Section 170CK(2)(e) was: the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities. In Zhang’s case “the Full Federal Court held that a complaint by an employee to his or her employer would not be caught by the provision”.

Jim Pearce observed that subparagraph 341(1)(c)(ii) of the Fair Work Act 2009specifically protects an employee who  makes  any inquiry or complaint in relation to his or her employment. Unlike existing paragraph 659(2)(e) of the WR Act, it is not a pre-requisite for the protection to apply that the employee has ‘recourse to a competent administrative authority’. It would include situations where an employee makes an inquiry or complaint to his or her employer. He referred to the decision made by Jessup J in Murrihy v Pty Ltd [2013] FCA 908. In the decision “Jessup J after discussing these earlier provisions held that s.341(1)(c)(ii) operated more widely to embrace a complaint by an employee to his or her employer. The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s. 659(2)(e), and observed that the new provision would "include situations where an employee makes an inquiry or complaint to his or her employer". One of the illustrative examples, that of "Rachel", seems apt to cover the meaning for which the applicant contends”.