How does a concerned Officer resolve workplace concerns?

 

I almost feel the need to apologise to all and sundry for the emphasis I am putting into the issue of Whistleblowing in the Public Service. Please bear with me – there is a real need for proper ‘whistleblowing’ provisions – particularly as the Government and Agency masters try to drive unions into oblivion. Without union protection the only way for Public Servants to bring workplace anomalies, misconduct, harassment, discrimination, graft, corruption, fraud or theft or worse to the attention of those who can fix the problem,  is for employees to ‘blow the whistle’. Hence as unions are forced into silence or impotence then the importance of ‘whistleblowing rights’ becomes evermore important if failures in public administration are to be kept in check. 

 

The primary objective of the COA is to make Customs more effective so that it gives 1) staff job satisfaction, 2) a feeling of contributing to the health of the nation, which in turn should provide 3) recognition of their worth and lead to 4) better workplace rewards. But perhaps the most important role of the union is to protect members from the abuse of power of more senior Officers. In particular the union must have a role to protect members who are subjugated to workplace harassment which is sanctioned or instigated by very senior managers because that then denies the member any course of appeal and rectification.   

 

The problem is that there is a fine line between a complaint about a job problem, an employee complaining about a workplace practice, an industrial issue and the suspected or known existence of official misconduct or unlawful acts.

 

A job problem that affects an individual can lead to management cover-ups, union involvement, then industrial action. In some cases a problem can lead to the instigation or exposure of unlawful acts.

 

Under the previous administration, the practice was to shoot the messenger. Employee problems were only caused by employees complaining – it never had anything to do with management decisions. The solution was never to fix the problem – the solution was to stop the employee complaining – “See Mum – no problems!!”

 

Unfortunately, until there is in place some system that properly ‘entitles’ employees to participate in workplace matters so they become part of the solution, employees will just have to complain to management in the hope that something will be done. When nothing is done and the matter escalates to an issue or if a serious problem is exposed, then people start taking sides to attack the issue or to defend it. Eventually someone blows the whistle and people who are at the top of an Agency or outside the scope of the issue become involved (e.g the Minister, the Media or the Public). Problems forced to the top of an Agency or outside the scope of the Agency are in effect Whistleblowing matters. They become Whistleblowing matters because virtually no Agencies have in place any truly effective way to deal with the range of problems that arise in public service employment.

 

So what happens when an individual takes a matter to the Agency masters or outside the Agency; The agency goes into defence mode and attacks the employee. What started out as a specific problem about something in the Agency suddenly becomes a very personal problem for the employee. Remedies available to an employee are virtually non existent. The Ombudsman and the Industrial Tribunals cannot judge the issues in total and the Public Service Commission is totally impotent.  

 

Employment sanctions taken by an Agency against a whistleblowing employee are barred from review by the Ombudsman because workplace disputes (i.e. agency retaliation) are considered an industrial type employment matter, and only the so called industrial tribunals are supposed to deal with employment issues.

 

However part of the problem is that any whistleblowing complaint made by a (Commonwealth) employee about administrative misconduct is immediately linked to an employment issue because the Agency instantly mounts employment related sanctions against the whistleblower. This then becomes a workplace dispute between the Agency and the whistleblowing employee and as such can only be heard by an Industrial Tribunal.

 

The two matters are distinctly different; 1) Whistleblowing is about defects in public administration and is discrete from 2) employment related sanctions taken by an agency in response to the whistleblowing.

What is really bad is that the Industrial Tribunals cannot look at the whistleblowing matters of public administration and the Ombudsman cannot look at the industrial – employment matters and because both are inextricably linked – neither can consider both the cause (whistleblowing) and effect (agency retaliation).

 

What should happen is that the Ombudsman should look at the original Whistleblowing complaint as a discrete matter about public administration. Then the Industrial Tribunal should look at what has happened to the employee (whistleblower) as a separate and discrete matter, based on the fact that the employee did something (whistleblowing) – in good faith or otherwise – and judge whether the conduct of both the employee and the Agency was fit and proper.

 

Subsequently if the Tribunal finds that the employee (whistleblower) acted in good faith and was improperly sanctioned by the Agency, then the Ombudsman should make a supplementary finding as a separate matter about the administrative (employment related) misconduct of the Agency.

 

This may mean that the Ombudsman may find that the original whistleblowing matter was not justified and there was no fault on the part of the Agency BUT that the agency acted improperly and inconsistently with relevant Acts (Workplace Relations, Public Service Act, OH&S, Comcare/Workcover) when they retaliated against the employee (whistleblower) who was acting in good faith.

 

Finally the Public Service Commission, on that advice of the Ombudsman should, on its on volition, charge those in the Agency who took improper sanctions against the employee. If there was sufficient evidence of malice and abuse of process, lack of procedural fairness or unlawful acts, then the employee should be able to claims of damages (either through the Commission or through the Courts) against the individual Agency managers who acted improperly.

 

The question is: why doesn’t a system like this exist in all areas of public administration?

 

Until the process of worker participation (through union representation preferably) is put back into practice, there will be further splits between employees and Agency Managers. As the split grows the conflicts will grow. There will be more and more Whistleblowing and more retaliation by Agency managers.

 

At some stage the only solution will be Whistleblower legislation which will force Agency managers to take notice of problems notified by employees. That legislation will ensure that the retaliation and bullying practices of recent public administrators will become a thing of the past.