Recap
By way of refresher from our article earlier this year:
- new whistleblower legislation commenced on 1 July 2019
- it modified laws relating to corporations, the banking industry and insurance companies in order to:
- provide significantly stronger protections to whistleblowers who make disclosures about matters such as corporate misconduct (e.g. fraud), criminal activity, or any other conduct that represents a danger to the public or financial system
- expand the scope of persons who may make protected whistleblower disclosures and the circumstances in which these disclosures may be made
- permit and protect anonymous disclosures
- impose substantial civil and criminal penalties on any breaches of whistleblower protections (such as disclosing the whistleblower’s identity and/or causing the whistleblower detriment through victimisation)
- the protection obligations apply to all disclosures made on or after 1 July 2019 even if the disclosure relates to suspected conduct occurring prior to that date
Mandatory Policy
Critically, the legislation requires that all public companies and large proprietary companies MUST have in place a compliant whistleblower policy by 1 January 2020 with a “large proprietary company” being a proprietary company that satisfies 2 of the following 3 criteria:
- $50+ million in consolidated revenue
- $25+ million or more in consolidated gross assets
- 100 or more employees
Mandatory Terms
In order to be compliant the policy MUST include (amongst other things) information about:
- the protections available to whistleblowers
- how and to whom protected disclosures may be made
- the ways the company will protect whistleblowers from detriment
- how the company will investigate the content of protected disclosures
- how the company will ensure fair treatment of other employees mentioned in protected disclosures that qualify for protection
- how the policy will be communicated and made available to employees
Disclosure to Staff
Any company that is required to have a compliant whistleblower policy MUST advise their employees of the existence of, the contents of, and the means to access, the policy.
Penalties
Fines of (currently) up to $12,600 can apply for non-compliance with the mandatory policy requirement (and this continues to apply for each year that this requirement is not met).
Action Required
Given the approaching deadline businesses MUST:
- determine whether they are obliged to have a compliant whistleblower policy in place
- if so, ensure it is in place by 1 January 2020 and alert all employees to the existence and contents of it
Given the increased scope and gravity of the new whistleblower legislation, businesses are strongly encouraged to seek legal advice as soon as a protected whistleblower disclosure is received.
More Information
Please call the leading employment lawyers in Parramatta, the Matthews Folbigg Workplace Solutions employment law team on 9635 7966 to speak with one of our employment lawyers if you require any assistance or advice.
