Case: Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347
Outcome: cited
The Report makes two things clear, although they are probably apparent from the terms of the Termination of Employment Convention and its history. First, the specific object of art 5(c) is to protect an employee from termination in retaliation for his or her recourse to an appropriate body in relation to some alleged misconduct on the employer's part: see also Zhang v The Royal Australian Chemical Institute Inc [2005] FCAFC 99 ; (2005) 144 FCR 347 (' Zhang ') at 352. Secondly, the expression "competent administrative authorities" has no technical meaning or fixed application. It may signify no more than an "appropriate body" (other than a legislative or judicial body or the employer) in the ratifying State to receive the communication of an allegation of misconduct on the employer's part. A body will be appropriate in this context if it has the legal capacity to manage or suitably address the allegation in some way (whether by investigation, a dispute resolution process, or otherwise). 107 To approach the expression in this way is in keeping with its ordinary meaning. I refer in this connection to English language dictionaries, such as the Oxford English Dictionary or The Macquarie Dictionary. The expression "competent administrative authorities" is plainly a compound one. Bearing in mind the terms, history and object of the Convention, as well as the specific object of art 5(c), it apparently signifies bodies (other than the employer) within the ratifying State having the legal capacity to manage, deal with, or suitably address the allegation in some way (other than by judicial decision or legislative action). In this context, an allegation of misconduct on the employer's part might be managed or suitably addressed in a variety of ways, including by investigation, reporting, prosecution, engagement of a dispute resolution process, making a determination or recommendation, or providing information and advice. I reject the respondent's submission that the expression "competent administrative authorities" refers only to "an authority with the capacity and the right to determine a controversy which is properly raised with it". This is to adopt an unjustifiably narrow approach, which is at odds with the history of art 5(c), and the aim of the Termination of Employment Convention and art 5(c). The purpose of art 5(c) is best served if a liberal interpretation of the expression "competent administrative authorities" is adopted, because it extends to an employee the protection against illegitimate retaliatory termination that art 5(c) was designed to give. 108 As previously noted, I infer from the statutory objects provisions, s 642(5), and the legislative history of s 659(1)(e) and s 642(5) that the meaning of the expression "competent administrative authorities" in s 659(1)(e) bears the same meaning as in art 5(c) of the Termination of Employment Convention, from which the expression derives. In particular, I reject the respondent's submission that the expression in s 659(2)(e) should be given a more restrictive meaning than in the Convention because of ss 660 and 661. I can discern no warrant for so doing.