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Focus: Increased whistleblower protections, and more to come…

24 November 2016

In brief: The Federal Parliament has passed an industrial relations bill that includes significant increases to the whistleblower protections applicable to unions and employer organisations. In what would be a comprehensive overhaul of Australia's whistleblower laws, the Federal Government has separately agreed to support the introduction of equivalent (or better) whistleblower protections in the public and private sectors. Partner Rachel Nicolson (view CV), Senior Associate Chris Holland and Lawyer Karina Plain report.

 
 

How does it affect you?

  • Unions and employer organisations will need to be mindful of the changes to whistleblower protections. Among other things, the new laws extend the scope of qualifying disclosures and provide for access to a greater number of remedies if a person takes, or threatens to take, a reprisal against a whistleblower.
  • The new laws also place an onerous burden on unions and employer organisations as liability may be attributed to a person (including an organisation) where it fails to prevent reprisals against a whistleblower.
  • The Federal Government's commitment to support the expansion of greater whistleblower protections to the public and private sector is significant. All companies should review their whistleblower policies and practices, and consider any necessary changes to ensure they are ready to meet the standard of whistleblower protections that will be established by the new laws.

Background

On 22 November 2016, the Federal Parliament passed the Fair Work (Registered Organisations) Amendment Bill 2014 (the Bill), one part of the Government's package of industrial relations legislation. To secure passage of the Bill, the Government agreed to include new whistleblower protections applicable to union or employer organisations. The Government also agreed to support equivalent changes to whistleblower protection laws in the public and private sectors, as discussed below. The Bill received Royal Assent on 24 November 2016 (becoming the Fair Work (Registered Organisations) Amendment Act 2016 (Cth) (79 of 2016) (the Act)).

The protections set out in the Act mark a significant change in Australia's whistleblower protection laws. While there are limited whistleblower protections in certain acts (eg the Corporations Act 2001 (Cth)), the key protections at present relate to public interest disclosures by former or current public officials (as reported in our 2013 article on whistleblower protections in the Public Interest Disclosure Act 2013 (Cth)).

The whistleblower protections in the Act

A number of the key amendments introduced by the Act that relate to whistleblowers include the following:

  • extending the category of whistleblowers who are protected, to include former officers, employees and members of a union or an employer organisation, and contractors of such organisations;
  • extending the scope of 'disclosable conduct' beyond contraventions of the Fair Work (Registered Organisations) Act 2009 (Cth) and the Fair Work Act 2009 (Cth), to include contraventions of the Competition and Consumer Act 2010 (Cth) or offences against a law of the Commonwealth;
  • compelling the person to whom the disclosure is made to allocate the issue to an 'authorised official', as defined in the Act (which includes the Fair Work Ombudsman and various Fair Work Commission personnel);
  • increasing the range of remedies available to whistleblowers to include orders granting injunctions, apologies, exemplary damages, or reinstatement to employment (where the whistleblower's employment was terminated); and
  • permitting the court to make an order against a person where they fail to fulfil their duty to prevent conduct that constituted taking or threatening to take a reprisal against a whistleblower (or where the person failed to take reasonable steps to ensure that those under its control prevented or refrained from that conduct).

Future public/private sector whistleblower protections

Senator Cash confirmed on behalf of the Federal Government that it agreed to:

  • support a Parliamentary inquiry to examine the whistleblower amendments in the Bill with the objective of 'implementing the substance and detail of those amendments' in order to achieve 'equal or better' whistleblower protections (including a compensation regime) in the corporate and public sectors;
  • support the Parliamentary inquiry to consider matters including: (a) compensation arrangements adopted in whistleblower legislation in other jurisdictions; (b) the definitions of 'detrimental action' and 'reprisal' and the interaction between criminal and civil liability; and (c) issues associated with internal disclosures;
  • refer the topic to the Parliamentary Committee by 30 November 2016, which will, in turn, report on its findings by the end of June 2017;
  • establish an 'expert advisory panel' to expedite the drafting of whistleblower legislation (subject to the Parliamentary Committee recommending stronger whistleblower protections in the corporate and public sectors);
  • introduce legislation into Parliament by December 2017; and
  • vote on the legislation by no later than 30 June 2018.

Conclusion

Unions and employer organisations should take careful note of the whistleblower protections outlined in the Act, and ensure that their policies and practices are compliant with its terms. Similarly, in light of the Government's commitment to support equivalent (or better) whistleblower protections in the public and private sector, companies should be aware of the terms of the Act and the potential application of similar laws to their business.

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