AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
1.3 Communication Channels Employers are generally not required to have specific reporting channels for employees to report concerns, with the exception of whistle-blowers’ disclosures (see 8.1 Whistle-Blowing ). Subject to any statutory, contractual or regulatory con - straints, employers retain discretion as to the design and operation of complaint‑handling processes. From a compliance and risk perspective, employers should ensure that appropriate and accessible options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to employees and other impacted people. This is an important action that employers can take to help sat - isfy the positive obligation imposed under a range of WHS and anti-discrimination laws to take reasonable and proportionate measures to eliminate, as far as possible, certain unlawful conduct (such as bullying, sexual harassment and discrimination). An effective complaint-reporting process should be in writing and contain: • easy-to-understand processes for making and managing complaints, including possible out - comes; • confidentiality protocols; • protections against victimisation or retaliation for making a report; • options for reporting internally or externally, infor - mally or formally, including anonymously (to the extent possible); • a choice of nominated internal contact officers for making a report; • information about how to contact relevant exter - nal bodies (such as the Australian Human Rights Commission, the Fair Work Commission, the Fair Work Ombudsman, WHS regulators, and state and territory anti-discrimination agencies); and • clear escalation pathways where a complaint is not managed effectively or involves senior employees. 1.4 Responsibility Australia has no mandatory qualifications for work - place investigators. However, investigations that are not conducted by appropriately skilled or experienced
• relevant industrial instruments, such as awards or enterprise agreements. In some circumstances, investigations are required to meet specific legal obligations imposed by statute, workplace instruments or regulatory frameworks. In other cases, employers may initiate investigations to demonstrate that reasonable and proportionate steps have been taken to discharge responsibilities under those laws, including duties relating to WHS, procedural fairness, discrimination and harassment prevention. For example, an employer may conduct an investiga - tion in order to: • establish a sound evidentiary basis, through a procedurally fair fact‑finding process, to support disciplinary decision‑making, including termination of employment; • demonstrate compliance with statutory obligations by evidencing that any action taken was reason - able and did not constitute unlawful adverse action under the FW Act; and • identify, assess and address risks to WHS, includ - ing psychosocial risks, to discharge duties under WHS laws. Employers must also be aware of laws that may restrict or impact how an investigation is conducted – for example, as follows. • Privacy laws may limit how personal information and sensitive employee data is collected, used and disclosed during the investigation process. • Allegations of potentially criminal conduct, such as assault, fraud or corruption, may require refer - ral to law enforcement (see 2.2 Communication to Authorities for further detail). In such circum - stances, any internal investigation may need to be paused, delayed or reframed to avoid compromis - ing law enforcement processes. • Whistle-blower laws may impose additional confi - dentiality and procedural requirements that shape how an investigation is undertaken.
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