WHISTLEBLOWER POLICY – DOES YOUR COMPANY NEED TO PUT ONE IN PLACE?

What is a whistleblower?

A whilstleblower is an individual who comes forward and shares his/her knowledge on any wrongdoing which he/she thinks is happening in the whole organisation or in a specific division/department. The following categories of persons may be whistleblowers:

1. an officer or employee (e.g. current and former employees who are permanent, part-time, fixed-term or temporary, interns, secondees, managers and directors);
2. a supplier of services or goods to the entity (whether paid or unpaid), including their employees (e.g. current and former contractors, consultants, services providers and business partners);
3. an associate of the entity; and
4. a relative, dependant or spouse of an individual (as set out above).

What do the amendments mean?

From 1 July 2019, the whistleblower protections in the Corporations Act 2001 (Cth) (Corporations Act) were expanded to provide greater protections for whistleblowers. From 1 January 2020, all public companies, large proprietary companies, and corporate trustees of APRA-regulated superannuation entities are required to have a whistleblower policy in place.

There are a number of NECA members that may fall within the definition of a “large proprietary company”, which includes those companies with at least 2 of the following:

1. consolidated group revenue in excess of $50million; or
2. consolidated gross assets of more than $25million; and
3. 100 or more employees at the end of the financial year.

The Corporations Act requires “large proprietary companies” to have a whistleblower policy in place that deals with the following issues:

1. information about the protections available to whistleblowers, including protections under the Corporations Act; and
2. information about to whom disclosures that qualify for protection under this Part may be made, and how they may be made; and
3. information about how the company will support whistleblowers and protect them from detriment; and
4. information about how the company will investigate disclosures that qualify for protection under this Part; and
5. information about how the company will ensure fair treatment of employees of the company who are mentioned in disclosures that qualify for protection under this Part, or to whom such disclosures relate; and
6. information about how the policy is to be made available to officers and employees of the company; and
7. any matters prescribed by the regulations.

What does that mean for the management team of my Company?

Company officers, company auditors, and other senior people within companies have obligations under the Corporations Act if they receive a report from a whistleblower. Unless these people handle the whistleblower report correctly, they may breach the obligations under the Corporations Act.

The whistleblower protections include criminal offences and civil penalties for a person causing or threatening to cause detriment to a whistleblower or breaching a whistleblower's confidentiality, including during an investigation into the whistleblower's concerns.

Once your company has adopted a whistleblower policy, the company should conduct upfront and ongoing education and training regarding its whistleblower policy, processes and procedures. Training should be provided to every employee and should be conducted on a regular basis.

What now?

NECA has developed a template whistleblower policy to assist its members in complying with these changes.

Please contact NECA Legal on 1300 361 099 or law.clerk@neca.asn.au to obtain a copy of our template policy or discuss your Company’s whistleblowing policy obligations.