Making a protected disclosure

What is a protected disclosure?

A protected disclosure is a report or complaint about disclosable conduct.

A person who makes a protected disclosure is referred to as the ‘discloser’. Often, the discloser may also be referred to as a ‘whistleblower’.

Reports or complaints about disclosable conduct can be raised directly with the registered organisation. In most cases, the organisation will be capable of addressing the matter and taking appropriate action. Otherwise, disclosable conduct can also be reported to a relevant agency.

Importantly, the Fair Work (Registered Organisations) Act 2009 (RO Act) protects eligible disclosers who make a report of disclosable conduct by the organisation, its officers or employees. This protection is also afforded to eligible disclosers who report disclosable conduct to the registered organisation.

A PERSON		MAKES A            DISCLOSURE		ABOUT AN                      ORGANISATION		TO THE RIGHT PERSON
A member or former member of a registered organisation  An officer or former officer of a registered organisation A person who had/has contract for supply of goods or services or had/has any other transaction with the organisation or branch, or its employees or officers, or of a branch of an organisation who is or was acting on behalf of the organisation or branch An officer, former officer, employee or former employee of the person in the above point		About disclosable conduct which includes an act of omission that: contravenes, or may contravene, a provision of the RO Act, Fair Work Act 2009, or the Competition and Consumer Act 2010, or constitutes, or may constitute, an offence against a law of the Commonwealth.		The discloser must have reasonable grounds to suspect that the information disclosed relates to conduct by a registered organisation, its branch or its officers or employees.		The General Manager or the staff of the Fair Work Commission (FWC) An FWC tribunal member The Australian Building and Construction Commissioner (ABCC), their deputy or an inspector of the ABCC The staff of the Fair Work Ombudsman (FWO)

Who can make a protected disclosure?

A person is able to make a protected disclosure if they are:

• a member or former member of a registered organisation
• an officer or former officer of a registered organisation
• an employee or former employee of a registered organisation
• a person who has or has had a contract for supply of goods or services or has or has had any other transaction with the organisation or branch, or its officers or employees
• a person who has or had a contract for supply of goods or services or has had any other transaction with an officer or employee of organisation or of a branch of an organisation 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 the contract or transaction.

To be protected, the disclosure must be made to the right person and be about ‘disclosable conduct’.

What is ‘disclosable conduct’?

While any information can be voluntarily given to an agency, only certain disclosures are protected under the RO Act. These include disclosures that the person:

• suspects on reasonable grounds, and
• which indicate that an organisation, a branch, or its officers or employees may have contravened a provision of the RO Act, the Fair Work Act, the Competition and Consumer Act 2010 or constitutes an offence against a law of the Commonwealth.

If these criteria are met, the disclosure must be made to the right person to be protected under the RO Act.

Who does the whistleblower need to disclose to?

The whistleblower can make their disclosure to the registered organisation to which they belong or they can make the disclosure to one of the following agencies:

• the General Manager or the staff of the Commission
• an Fair Work Commission tribunal member
• the staff of the Fair Work Ombudsman (FWO).

A whistleblower can also give the information to a lawyer who can contact an agency.

A person does not need to use the word ‘whistleblower’ to be protected, however it may help the agency receiving the information to recognise the importance of the disclosure. There whistleblower has no obligation to provide their name or contact details. However this can impact how or whether a disclosure is investigated.

What happens next?

Whistleblower disclosures must be investigated unless an ‘authorised official’ determines that it fits one of the exceptions in the regulations:

• The information does not, to any extent, concern serious disclosable conduct.
• The disclosure is frivolous or vexatious.
• The discloser has informed the investigator that the discloser does not wish the investigation to be pursued, and the investigator is reasonably satisfied that there are no matters concerning the disclosure that warrant investigation.
• It is impracticable for the disclosure to be investigated:
  • because the discloser’s contact details have not been disclosed
  • or because the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the investigator asks the discloser to give
  • or because of the age of the information.
• The information is being, or has been, dealt with adequately in another manner (refer to regulation 176G).

In circumstances where a disclosure is made to a registered organisation, the organisation will assess the matter according to its internal rules and policies to determine the best way forward. If the whistleblower is not satisfied with the action taken by the organisation, they can raise the matter with a relevant agency.

The RO Act has timeframes that an agency must adhere to when it receives a disclosure:

• It must allocate the disclosure to an authorised official within 14 days of receiving the disclosure.
• The authorised official must complete the investigation within 90 days.
• The final report must be provided to the relevant parties within 30 days of being completed. 

Extensions of time can be sought if more time is needed to complete an investigation. 

Who is notified about the disclosure and when? 

The person who makes a disclosure can seek to remain anonymous, however, they will not be contacted by the agency with updates on the investigation. Additionally, if the agency requires more information or finds that it is impractical to progress the investigation because they cannot contact the whistleblower, this may result in the investigation being discontinued or not started.

If the whistleblower provides their name and contact information the agency will update the whistleblower when:

• the disclosure is allocated to the authorised officer
• the investigation commences
• the investigation is discontinued
• an extension of time is granted
• the investigation is completed.

The agency may contact the whistleblower if they require more information. If the agency finds that it is impractical to progress the investigation because they cannot make contact the whistleblower, the investigation may be discontinued or not started.

The organisation may be contacted as part of the investigation. This may involve sharing details of the disclosure to the organisation to ensure that they are able to properly answer the allegations made against them. In some cases, this may involve identifying the whistleblower to the organisation.

There is no guarantee under the RO Act of anonymity. There are occasions, however, when the agencies need to seek the whistleblower’s consent to disclose their information. Whistleblowers are protected against reprisals.

What reprisals are whistleblowers protected against?

A whistleblower is protected against reprisals for making the disclosure including:

• any civil or criminal liability for making the disclosure (the person may still be liable for their conduct revealed by the disclosure)
• any contractual or other remedy being enforced on the basis of the disclosure
• any form of reprisal, which is detriment being caused by another person because they made the disclosure, including:
  • dismissal
  • injury in their employment
  • discrimination between them and other employees
  • harassment or intimidation
  • harm or injury (including psychological injury)
  • damage to property
  • damage to reputation.

The is not an exhaustive list and other forms of detriment, caused by action or inaction, may also be protected against.

What are the civil and criminal penalties for breaching the protections of whistleblowers?

The Federal Court or Federal Circuit Court can order significant civil remedies including:

• compensation for loss, damage or injury
• injunctions to prevent, stop or remedy the effect of reprisals or threats
• an order requiring an apology
• reinstatement
• exemplary damages
• any other order the court things appropriate.

There are also civil penalties for taking or threatening to take a reprisal against a whistleblower.

There are also criminal offences that attach to the protections. A person commits an offence if they take or threaten a reprisal against a whistleblower and the reason for the reprisal was their belief that the whistleblower made, may have made, proposes to make or could make a protected disclosure. The offence is punishable by imprisonment of up to 2 years, a fine, or both. 

Discloser's guide to raising concerns with registered organisations

This guide has been created to assist people who are considering raising a matter such as a complaint about service, breach of internal rules or policies or disclosable conduct as defined under the RO Act in relation to an officer, employee or member of a registered organisation, or one of its branches. 

This guide should be read in conjunction with the organisation’s internal rules and policies. 

Discloser's guide to raising concerns with registered organisations

Contact us

To make a protected disclosure call 1300 341 665 or email regorgs@fwc.gov.au.