New whistleblower protections now in effect

New laws protecting whistleblowers in the workplace came into effect on July 1 and it is incumbent upon RCSA Members to have a clear understanding of what the changes are and what they mean for clients and candidates.

This is the opinion of Andrew Wood Hon FRCSA (Life), Employment Relations Advisor with WorkAccord, who has produced a Memo on the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 to help educate RCSA Members.

“An understanding of whistleblower protection laws, and their application to Members’ operations, is part of the field of professional knowledge of which Members should have reasonable command,” Wood explained.

“Whistleblower laws protect people who make public interest disclosures from certain liabilities such as civil and criminal liability arising from making a disclosure that might otherwise breach confidentiality.

“They also protect them from certain ‘detriments' such as victimisation and retaliation in the workplace.”

Wood explained that whistleblower protections have been around for a long period of time but have “often proven to be unsatisfactory”. The new laws have been designed to offer greater protection for whistleblowers.

He added that knowledge of the new laws was particularly important for Members because RCSA's own Professional Conduct Framework recognises the need to manage professional conduct grievances in a way that ensures that Whistleblower disclosures are identified and escalated appropriately with regard to the need to preserve statutory protections.

Under the new legislation, all public companies, large proprietary companies and companies that are trustees of registrable superannuation entities are required to develop a whistleblower policy by 1 January 2020 which must be available to officers and employees of the company.

He said small proprietary companies which becomes a large proprietary company after 1 January 2020 have an additional six months to develop its policy.

Developing response protocols

Wood said there are six key questions to consider when developing a whistleblower policy and response protocol for complaints.

1. Does the disclosure concern a regulated entity that falls within the coverage of the protection regime? The scheme does not apply to all types of entities. In some cases, ASIC can grant relief from the whistleblower policy requirements.

2. Does the whistleblower have reasonable grounds for making the disclosure? ASIC explains that: “‘Reasonable grounds’ means that a reasonable person in [the position of the whistleblower] would also suspect that the information indicates misconduct or a breach of the law.”

3. Is the person who makes the disclosure (the whistleblower) eligible for protection? There are some circumstances (e.g. disclosures by employees undergoing to disciplinary conduct concerning only the disciplinary matters) that are not protected.

4. Is the disclosure about a properly disclosable matter? Not every matter qualifies for protection.

5. Has the disclosure been made to a proper recipient? Not everybody is eligible to receive a protected disclosure.

6. Is any action that may be contemplated against the whistleblower protected? The types of “detriment” from which the whistleblower is protected are very wide, though not limitless and they may not all necessarily give rise to compensation entitlements.

“There are over 40 pages of amendments to the Corporations Act 2001, the Taxation Administration Act 1953, and other Treasury legislation,” Wood said. “They build on existing duties, obligations, responsibilities and regulatory schemes.

“So, if you are contemplating making a whistleblower disclosure, if you are the recipient of one, or if you are developing whistleblower policies, RCSA recommends that you seek advice from a legal practitioner or other competent governance advice.”

Resources

ASIC has produced a useful Summary and a nine-page Information Sheet (Info Sheet 238) about the changes. RCSA strongly recommends that Members read them.

The Summary sets out, at a high level, an outline of what a whistleblower policy should contain.

There is also a Summary for the Not for Profit Sector.

“Over the coming weeks and months, as ASIC develops further regulatory guidance on the requirements for whistleblower policies, with public consultation planned for the second half of 2019, RCSA will provide further information and resources for Members,” Wood added.

The full memo can be viewed here