Whistleblowing - the legal update

This week the HR Staff n’ Stuff team were lucky enough to attend an HR Employment Law Masterclass where we heard updates on areas that affect a wide range of our clients.  One major area that was covered and has had significant changes of late is related to the Whistleblower laws.  This is a complex and large piece of legislation that you hopefully won’t ever need to use but we have a summary of considerations businesses need to be across.

---

WHAT IS IT?
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 commenced operation on 1 July 2019.  It amends various legislation including pieces with the result  that whistleblower protections are strengthened and consolidated.  This change essentially streamlines and improves laws that were already in play but were under utilised as they were difficult to use and whistleblowers felt too exposed.

These new laws provide a broader range of conduct that will be deemed reportable and for which the whistleblower will receive protection.   When we talk about disclosable matters, it can include such things as reporting a supervisor who has arranged a private kickback from a supplier, fraudulent activity no matter how innocuous, rorting the tax office or other areas that are overseen by ASIC or APRA.   Whistleblowing won’t always be about an event that will make global news (can anyone say quid pro quo) but it doesn’t make it any less important as its purpose is to reduce and remove corruption at every level within business.

Disclosures will be able to be made anonymously but the whistleblower must have reasonable grounds to suspect and ultimately report misconduct.  Importantly, only certain people are able to be eligible recipients of disclosures – office bearers such as CEO’s, CFO’s, as well as lawyers, tax agents, and bodies such as ASIC and APRA.   The duty of being an eligible recipient of a disclosure is onerous and comes with significant responsibilities that can attract both civil and criminal penalties if breached.  You need to think carefully before nominating someone in your business to receive disclosures.  An option to consider is the setting up of an external employee hotline allowing you to offer confidentiality and further provide anonymity whilst still meeting your legislated obligations

WHO DOES IT AFFECT?
The new whistleblower laws regulate most business entities, specifically all of the following:

• Companies
  
• Corporations
  
• Authorised deposit taking institutions (ADI) , authorised non-operating holding companies (NOHC), or a subsidiary of either.
  
• General insurers, authorised NOHC or a subsidiary of either.
  
• Life insurance companies, register NOHC or subsidiary of either.
  
• Superannuation entities or a trustee of same.
  
• Any entity prescribed by the regulations.

WHO CAN BE A WHISTLEBLOWER?
Who can disclose as a whistleblower has also been broadened and includes current or former:

• Employees and officers;
• Contractors, suppliers and their employees;
• An individual who is an associate (as defined in the Corporations Act) of the entity; and 
• Spouses and relatives of any of the above. 

A contractor or supplier includes an individual who supplies goods or services, whether paid or unpaid.   

PROTECTIONS
A whistleblower has a number of very important protections under the Act and there are both Civil and Criminal penalties that will apply if these protections are breached.  

Importantly, you can not expose the details of a whistleblower without their express consent.  You can not identify them directly or provide any information that may lead to their identification.  In fact, the penalty for not complying with a whistleblower’s request to remain anonymous can be up to $1.05million for individuals and over $10million for companies. 

Significantly, a whistleblower cannot suffer any detriment from coming forward.  This can include dismissal as an employee, change in their employment position, harassment or intimidation, harm or injury – includes both physical and psychological, damage to reputation to name a few.  These protections extend beyond the whistleblower to include anyone with relevant information or experience that relates to the disclosures made.

WHEN DO YOU HAVE TO ACT
Public companies, large proprietary companies and registerable superannuation entities have until 1 January 2020 to implement a compliant whistleblowing policy otherwise they will face penalties.  Not -for-profits are also required to have their policy in place and available to the public via their website.  In fact, while your business may not be required to have a whistleblower policy, all companies are regulated by the law itself and it is therefore important for all businesses to have a clear policy on this to assist managers and staff alike.  It’s important to understand that this law will apply to all disclosures even if the reported conduct occurred before the commencement date of the Act.  This means any conduct now reported by a whistleblower will be subject to any civil and criminal proceedings where applicable and all obligations for businesses are in effect.    As such, HR Staff n’ Stuff advises all companies have a Whistleblower policy in place as best practice as well as implementing training to ensure Boards and Senior Managers know how to receive and investigate disclosures and all employees understand what is a protected disclosure and who these protections will apply.

This is a complex and important change in the law so please contact HR Staff n’ Stuff for support in having your policy prepared and implemented for the protection of your staff and your business.

Subscribe to our HR Newsletter. No junk, Just the Good Stuff!