Making a protected disclosure

The whistleblower scheme in the RO Act protects certain people if they choose to make a complaint. A person can make a protected disclosure if they are:

  • a current or former member, officer or employee of a registered organisation 
  • a person who has or has had a contract for the supply of goods or services or any other transaction with the organisation or branch
  • a person who has or had a contract for the supply of goods or services or any other transaction with an officer or employee of an organisation or of a branch who is or was acting on behalf of the organisation or branch
  • an officer, former officer, employee or former employee of the person who has or had the contract or transaction.

To be protected, the complaint must be about ‘disclosable conduct’ by an organisation or branch, or its employee or officer. Disclosable conduct is an act or omission that either:

  • breaches, or may breach, a section of the RO Act, the Fair Work Act 2009 or the Competition and Consumer Act 2010, or
  • is, or may be, an offence against another law of the Commonwealth.

Examples of issues that are protected by the scheme are complaints about:

  • a branch misusing organisation resources to ensure an incumbent is re-elected  
  • credit cards being used to pay for personal expenses
  • an officer transferring property belonging to the organisation into their own name.

Examples of issues that are not protected by the scheme are complaints about the service provided by a registered organisation and breaches of internal policy, other than those related to financial management or administration.

The complaint about disclosable conduct must be made to a particular official. An official is one of the following:

  • the General Manager or a staff member of the Fair Work Commission
  • a Fair Work Commission tribunal member
  • a staff member of the Fair Work Ombudsman. 

Eligible disclosures must be investigated (unless the complaint is exempt under the regulations). 

A whistleblower can remain anonymous, but this may affect the ability to conduct an investigation. A whistleblower who provides their contact details will be notified of the progress of the investigation. 

Read our fact sheet to find out more about how to make an eligible disclosure.


The investigation of complaints

Whistleblower matters are allocated, within 14 days, to an authorised official who is responsible for investigating the complaint. An authorised official can be one of the following people: 

  • the General Manager of the Fair Work Commission
  • a Fair Work Commission tribunal member
  • the Fair Work Ombudsman.

An investigation must be completed within 90 days unless the General Manager of the Commission grants an extension.   

During an investigation, the authorised official may make further enquiries to gather more information. This may include contacting the registered organisation to respond directly to the complaint. At the completion of the investigation, the authorised official must inform all parties of the outcome. 

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The protections for whistleblowers

A person who makes a protected disclosure is protected against reprisals and threats to take a reprisal against them for making the disclosure. 

This includes protection against:

  • civil and criminal liability for making the disclosure (the discloser may still be liable for their own conduct which may be revealed by the disclosure)
  • a contract or other remedy being enforced against them because of the disclosure
  • any form of reprisal action including dismissal, discrimination, harm or injury because they made the disclosure. 

If a protection is breached, a court can impose a criminal or civil penalty, or a civil remedy. 

Read our fact sheet to find out about the protections for whistleblowers.


During and after an investigation

The Commission works with organisations and branches to resolve the concerns raised in whistleblower complaints.  Organisations that have kept good records will often be able to supply helpful information that resolves the concerns.  

Some whistleblower investigations are assisted by the organisation’s own inquiries into the behaviour once it is made aware of it.  

After an investigation, the Commission might decide that the conduct, while important or serious, does not need to be prosecuted. In many cases the Commission will work with the organisation or branch to improve its governance procedures and controls to prevent the behaviour from occurring again. The Commission may also work with the organisation to promote greater transparency.

In cases of wilful or serious misconduct, the Commission may start a further investigation with coercive powers or take the officer and/or the registered organisation to court.

Complete the whistleblower e-learning module to find out more about the investigation process following a whistleblower complaint.


Promoting a ‘speak up’ culture

Not all complaints about misconduct are reported to an agency under the whistleblower scheme. Registered organisations can encourage reports about misconduct directly to them by building a ‘speak up’ culture. 

A ‘speak up’ culture:

  • creates a safe and positive environment for people in the organisation to raise concerns
  • helps the organisation resolve issues quickly
  • provides for the opportunity to prevent misconduct.

Organisations with a ‘speak up’ culture and sound record-keeping procedures can quickly reassure the Commission in relation to allegations of misconduct, and head off potential lengthy or complex investigations. 

  Listen to our podcast for tips about developing a ‘speak up’ culture in registered organisations.

To ask questions about protected disclosures or make a complaint to the Commission email regorgs@fwc.gov.au


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