While there are very limited protections available to whistleblowers in the private sector under the Corporations Act, the Fair Work Act 2009 (Cth) provides an alternate avenue for protection, in some circumstances, for whistleblowers making complaints to their employer in relation to aspects of their employment.

Under the Fair Work Act it is unlawful for an employee to be adversely treated at work because they have exercised, or propose to exercise, a workplace right. A “workplace right” can include an individual making a complaint or inquiry in relation to their employment. Adverse treatment can include:

• an employee’s employment being terminated
• an employee being “injured” in their employment, through, for example the institution of performance management
• an employee’s employment being “altered to their detriment”, through, for example, demotion
• an employee being discriminated against in comparison to other employees in the workplace.

The important requirements here are that:

• the complaint or inquiry must be in relation to the “employment”, although this phrase has been broadly construed
• the adverse action must have been taken against the employee “because of” the employee’s complaint or whistleblowing activity.

The Employment law team at Taxcellent Consulting Services has represented clients who have made whistleblower complaints in General Protections Adverse Action claims in instances involving bribery, corruption, bullying and OH&S breaches. We also represented an employee who was a whistleblower on bribery and corruption within Securency, a company owned by the Reserve Bank of Australia.

A majority of these cases have settled out of court and were settled with mutual confidentiality obligations preventing either party from disclosing both the content of the complaint and the settlement of it.