The biggest employment scandal this country has ever seen – the rampant underpayment of 7-Eleven employees – was the result of courageous staff members coming forward to expose the wages scam.
Over a year on from the joint Fairfax Media-Four Corners expose, we would most certainly still be ignorant to the exploitation if it weren't for those whistleblowers.
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![Mohammed Rashid Ullat Thodi spoke out about his exploitation at 7-Eleven.](/web/20161026144342im_/http://www.theage.com.au/content/dam/images/g/m/s/s/5/t/image.related.articleLeadNarrow.300x0.gsapvv.png/1477486751543.jpg)
While corporate and political scandals continue to mount, and with it the expectation that whistleblowers will come forward on corruption and misconduct, the cruel irony for people brave enough to speak up is that it can sometimes do them more harm than good.
Whistleblower safeguards are the new frontier of protections required for employees.
Laws don't protect
The recent exposure of systemic underpayments with reference to 7-Eleven workers and the highlighting of concerning behaviour with reference to CommInsure's claims processing are key examples of the important role of whistleblowers.
Australian laws designed to protect these people are so technical and complicated that in many instances they inadvertently leave many exposed to reprisals.
If we want a transparent, functioning democracy we must better protect employees who expose inappropriate conduct.
Addressing these failures goes beyond just changes to the Australian Securities and Investments Commission's (ASIC) powers or the corporations' law, it also requires improved protections within employment laws and the Fair Work Act.
While whistleblowers are generally acknowledged by the community as having a vital role, it is a sad truth that they are often victimised, vilified and criminalised.
What the AFP raid example shows is that in too many instances the law falls short in protecting whistleblowers.
If we want a transparent, functioning democracy we must better protect employees who expose inappropriate conduct.
Overly technical
Most governments do have public interest disclosure legislation, however it is highly technical, and one misstep can result in the whistleblower being exposed.
The classes of employees covered are limited, as is the subject matter and even the recognised acceptable recipient of the information.
For example, anti-reprisal provisions of these laws only provide protections where the whistleblower has complied with all procedural requirements, which cannot always be found in one place.
The laws also refer to specific departmental procedures, often buried in government websites and not easily accessed. If these procedures are not followed, the whistleblower is not protected and is instead exposed to a range of potential consequences.
At least government employees and contractors have some protections, employees in private companies however are another matter.
The Corporations Act provisions are restricted to current officers, employees and contractors making disclosures to the company's auditor, director (or other senior manager or person authorised by the company) or ASIC.
It does not protect those who provide information anonymously to journalists, nor does it protect information that doesn't indicate a breach of the Corporations Act or Australian Securities and Investments Commission Act.
The law also specifically denies protection to people found to be motivated by a secret or unrelated reason in making the disclosure.
In addition, the whistleblower must be familiar with the contents of the Corporations Act and/or ASIC Act and how it applies to the information being disclosed.
ASIC actually acknowledges that it doesn't have the time or the resources to help victimised whistleblowers or those who have been sacked or sued.
Public interest?
The Fair Work Act provides some limited protections for employees, but it can only be used when the employee complains about something that directly affects them.
Hence if they expose a matter of interest to the public, but that doesn't directly affect them, then they're out in the cold.
The reality is for most whistleblowers they are either sacked or slowly pushed out. The community expects that those who witness wrongdoing will stand up and act. In fact, most government departments mandate it.
However for those who do, the consequences can be dire because of the failures of our current legislation.
Whistleblowing laws must provide protection to those who are vulnerable, not legal loopholes to people in powerful positions wanting to silence dissent.
This is essential if our democracy is to function properly.
Giri Sivaraman is a Principal and Alana Heffernan is an Associate in Employment and Industrial Law at Maurice Blackburn Lawyers.
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