Whistleblower protections in the corporate sector have been bolstered by amendments designed to encourage the disclosure of corruption, fraud, tax evasion, and misconduct. Most notably for industrial relations practitioners, the amendments introduced mandatory requirements for larger companies to implement an appropriate whistleblowing policy by January 2020. These changes were designed with the idea of seeing an increase in the number of disclosures in the corporate, financial and credit sectors.
The key features of these laws, including the mandatory whistleblower policy rule, are detailed below.
Reduced burdens on the whistleblower
Previously, whistleblowers were required to show that disclosures were made in ‘good faith’ in order to be immune from legal action. This involved proving that disclosures were honest, genuine, and motivated by wanting to disclose misconduct.
The laws now only require “reasonable grounds to suspect wrongdoing” for whistleblowers to gain immunity.
Increased protections for whistleblowers
Whistleblowers are entitled to have their anonymity maintained, and to be protected from individuals who may cause or threaten detriment.
In addition, eligibility to make protected disclosures (ie, genuine disclosures about improper conduct) has been expanded to include current or former employees to officers of a company that the disclosure is about (or a related company), along with contractors, a contractor’s employees and relatives of eligible whistleblowers.
Penalties
Individuals may be fined up to $1.05m and companies may be fined up to $10.5m where they either:
- Breach the confidentiality of a whisleblower’s identity; or,
- Victimise or threaten to victimise a whistleblower.
Mandatory whistleblower policy
Large companies are required to implement a whistleblower policy. These are defined as companies which meet at least two of the following criteria:
- Consolidated revenue of at least A$25m;
- Consolidated gross assets of at least A$12.5m; or,
- At least 50 employees within the company and the entity it controls.
This policy must cover all employees, contractors, suppliers and relatives of employees, both past and present. It should include information about the following:
- Protections available to whistleblowers;
- The person/organisations to whom protected disclosures may be made, and how they can be made;
- How the company or organisation will support whistleblowers and protect them from detriment;
- How the company or organisation will investigate protected disclosures;
- How the company or the organisation will ensure fair treatment of employees who are mentioned in protected disclosures, or to whom such disclosures relate;
- How the policy is to be made available to officers and employees of the company; and,
- Any other matters prescribed by the regulations from time to time.
The whistleblower policy must have been in place before 1 January 2020, otherwise fines of up to $12,600 may be imposed.
If you require assistance understanding the implications of these amendments for your company, or require assistance drafting a compliant whistleblower policy, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au.
The information contained in this post is current at the date of editing – 26 June 2024.
