Fair Work Act general protections for a corporate whistleblower?

The general protections scheme under Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) protects employees from adverse action taken against them by their employer because they have or exercise a workplace right. One of the protected 'workplace rights' is that in s 341(1)(c)(ii) - the ability of an employee to make a complaint in relation to their employment. This has founded a substantial proportion of general protections claims.

There is a divergence in judicial approaches to the scope of this protection. A broad view was taken by Bromberg J in Walsh v Greater Metropolitan Cemeteries Trust(No 2) [2014] FCA 456 (Walsh) of the nexus required of a complaint made under s 341(1)(c)(ii). In Walsh, a report made by an employee about a linen supplier providing sub-quality service was held to be a complaint in relation to that employee's employment because it raised "potential implications" about the employee's employment.

This matter was canvassed recently by the Court in The Environmental Group Ltd v Bowd [2019] FCA 951 (Bowd). The decision also examines the whistleblower protections afforded by Part 9.4AAA of the Corporations Act 2001 (Cth) (CA).

Background In Bowd the applicant was a CEO of a publicly listed company who claimed that he was subject to adverse action by the employer and its managing director because he exercised the following "workplace rights" under section 341 of the FW Act:

making a CEO report to the Board regarding potential financial irregularities making complaints of contraventions of the CA by the employer and managing director to the Australian Securities and Investment Commission (ASIC) taking personal leave. The adverse action that was claimed by the CEO included an investigation into his conduct, suspension and dismissal.

The CEO's report The applicant submitted that his report to Board regarding potential financial irregularities was a complaint made "in relation to his employment" for the purposes of section...