Adverse action protection for the right to complain or inquire in s 341 of the Fair Work Act

This article addresses a gap in the literature on adverse action laws by discussing the way the courts have interpreted the provisions which protect the right to complain or inquire, outlining and analysing case law on the causal requirement and on the scope of the right to complain or inquire. The article concludes that the courts have tended to place an unduly heavy focus on the employer's direct evidence of its subjective reasons for taking adverse action against an employee. With respect to the scope of the right to complain or inquire, the most contentious issue appears to be whether a complaint or inquiry must be based in an entitlement or right created by a legal instrument. The article argues that no such requirement should be read into the legislation.