I’m a whistle-blower, am I protected by the Fair Work Act?

What is whistleblowing?

There is no universally accepted definition of whistleblowing. The term is typically used to describe the conduct of an employee who reveals information about an improper or detrimental act committed by their employer or colleague.

If you have engaged, or plan to engage, in whistleblowing conduct and are afraid of the repercussions, it is important to be aware of how the law will protect you. Likewise, if you have engaged in whistleblowing conduct, and your employer has acted in a retaliating and revengeful manner, it is important to know your rights.

I work in the public sector: what regimes exist to protect me?

If you are a Victorian employee who works in the public sector and engages in whistle-blowing conduct, you will most likely be protected by the Protected Disclosure Act 2012 (No.85 of 2012) (Vic). This Act protects employees who disclose information that shows, or could be reasonably interpreted to show, improper conduct or detrimental action that has been committed by a person, public officer or public body. The Act further prevents an employer, or a colleague, from taking detrimental action against you because of your disclosure.

Alternatively, public officials who work in the Commonwealth public sector may be protected by the Public Interest Disclosure Act 2013. Under this Act, a public official will be protected if they make a “public interest disclosure” to an investigating entity.

I work in the private sector: what regimes exist to protect me?

It is important to note that if you are a Victorian employee who works for a private entity that performs a public function, you will still be eligible for protection under the Protected Disclosure Act 2012 (No.85 of 2012) (Vic).

Otherwise, if you are an employee working in the private sector who engages in whistleblowing conduct, you may instead be eligible for protection under the Corporations Act 2001 (Cth). However, a major drawback of this regime is that it will not protect you unless you make a disclosure regarding a breach of a provision of the Corporations Act 2011 (Cth).

Can I rely on the Fair Work Act?

There are various loopholes in the regimes mentioned above which undermine the protection they offer to whistleblowing employees. For example, under section 44 of the Protected Disclosure Act 2012 (No.85 of 2012) (Vic), an aggrieved employer is still entitled to carry out a “management action”, which perhaps could include the issuing of a formal warning to a whistleblowing employee, as long as the whistleblowing conduct is not a “substantial” reason for them taking this action. Therefore, you may prefer to rely upon the Fair Work Act 2009 (Cth).

While there are no explicit provisions in this Act relating to the conduct of whistleblowing, an employee has the right to make a complaint or inquiry in relation to his or her employment under s341 of the Act. If your whistleblowing conduct entails the making of complaints or inquiries, and you believe your employer has taken ‘adverse action’ against you (such as dismissing or demoting you) because of your whistleblowing conduct, you should not hesitate to seek legal advice in relation to your rights.

What if I am subject to a confidentiality agreement?

If you are concerned that your employer has provided you with a confidentiality agreement which bars you from engaging in any whistleblowing conduct, it may be worthwhile seeking legal advice as to whether the agreement is legally valid.