Agencies responsible for protected disclosures
Responding to protected disclosures under the Fair Work (Registered Organisations) Act 2009 (the RO Act) is a collaborative effort between the Commission and the Fair Work Ombudsman (FWO).
Agencies that are able to receive whistleblower disclosures must ensure that their staff are aware of their obligations under the whistleblower disclosure regime and comply with the prescribed timeframes.
A person can make a whistleblower disclosure through any method they choose. Therefore, the agency may be contacted by email, post and telephone. A whistleblower does not need to identify themselves as a whistleblower or use any special phrasing to attract the protections and impose investigation obligations upon an agency.
What is a protected disclosure?
The first step is determining whether the information received by the agency amounts to a protected disclosure by a whistleblower. The disclosures which qualify for protection are outlined in section 337A of the RO Act. For further information, refer to Making a protected disclosure.
A protected disclosure can include information that is received by an authorised recipient in the agency’s normal course of business.
A disclosure can also come to an agency from a person’s lawyer on their behalf.
Once the agency has determined it is a disclosure, it must allocate the matter to an authorised official within 14 calendar days of receiving the disclosure.
The timeframes for a protected disclosure investigation are very short and must be watched carefully.
Extensions of time can be sought from the General Manager of the Commission if required.
For further information about timeframes, refer to Making a protected disclosure.
Allocate the matter to an authorised official
Within 14 days of receiving the disclosure the matter must be allocated to an authorised official. The RO Act defines authorised official as:
Before allocating a disclosure to an authorised official their consent to receive the allocation of the protected disclosure needs to be obtained. When seeking the consent of the authorised official, the authorised official should be notified of how long it has been since the disclosure was received.
The matter can be allocated to the authorised official within the agency that received the disclosure, or to an authorised official in a different agency more suited to the particular disclosure made.
The agency must notify the discloser that the allocation has been made.
Notify the Commission of the allocation
If the matter is not allocated to the General Manager, they must be informed of the:
The authorised official must investigate
The authorised official must investigate except in circumstances prescribed in the Fair Work (Registered Organisations) Regulations 2009. When an investigation is commenced it must be completed within 90 calendar days (unless an extension is granted).
The regulations set out situations in which an investigation does not need to be commenced or investigated further:
If the authorised official determines not to commence an investigation, the discloser must be informed.
The authorised official must also inform the General Manager that they do not intend to further investigate the disclosure and the reasons for the decision.
The investigation – the 90 day time limit and extensions
Once the decision has been made to commence an investigation, the discloser must be informed that an investigation is required and the estimated length of the investigation.
The investigation must be concluded within 90 calendar days of the allocation.
If an extension of time is required beyond the 90 days, an application may be made to the General Manager seeking an extension for any additional required period. The discloser is also able to seek an extension. The General Manager can extend the period by whatever amount of time they consider appropriate.
Multiple extensions may be sought.
If an extension is granted, the General Manager will inform the discloser of the extension and the reasons for the extension being granted. As part of notifying the discloser of an extension, the authorised official must also inform the discloser of the progress of the investigation.
Referral of matters to other agencies and authorities
The RO Act includes the power to notify a member of an Australian Police force of evidence of an offence against a law of the Commonwealth, a state or a territory. In circumstances where the offence is punishable by imprisonment of life or at least 2 years, the authorised official must notify the police.
If the authorised official suspects a breach of the Competition and Consumer Act 2010 they may disclose the information to the ACCC and/or the police.
Information may also be shared with other relevant agencies.
Completing the investigation
Once the investigation is complete, the agency must notify the discloser of the completion of the investigation and whether:
The authorised official must also complete a report setting out:
Within 30 days of completing the report, a copy of the report must be provided to any person or body that the report recommends takes action.
The official may redact any material likely to identify the discloser or another person or would result in the copy being exempt from the Freedom of Information Act 1982 or contravene a designated publicity restriction.
Notify the Commission of the completion of the investigation
While it is not required by the RO Act, it is recommended that the agency inform the General Manager of the completion of the whistleblower investigation.