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Before the whistle blows: Is your whistleblower policy ready for the 1 July changes?

06 June 2019

On 1 July 2019, new whistleblower laws will come into effect.  Employers should ensure they are across the changes, including implementing workplace policies dealing with disclosures.

On 1 July 2019, the new whistleblower laws will come into operation.  Following the Royal Commission into the banking and finance industry, there has been increased pressure to provide greater protections for whistleblowers, and as a result the Treasury Laws Amendment (Enhancing Whistle-blower Protections) Bill 2018 was born.

The question for employers is, will you be ready when they take affect?

 

What has changed?

The main changes to whistleblower protections are:

  1. Anonymity: a whistleblower will not be required to disclose their identity and can choose to remain anonymous if they wish.

     

  2. Expansion of eligibility: a discloser does not need to be a current employee and will now include associates of a regulated entity, unpaid workers/volunteers, former employees, officers, contractors, etc. (including a relative or dependant of such individuals).

     

  3. Reasonable grounds: a whistleblower must have reasonable grounds supporting their disclosure. This has not changed but it has been broadened to include where the whistleblower has reasonable grounds to suspect that the information concerns:
    1. Misconduct; or
    2. An improper state of affairs; or
    3. That a regulated entity has engaged in conduct that, amongst other things:
      1. Constitutes an offence (punishable by a term of imprisonment of 12 months or more); or
      2. Represents a danger to the public or financial system; or
      3. Constitutes an offence, or contravention, of, amongst others, the banking, insurance, superannuation and taxation legislation.

       

  4. Emergency and public interest disclosure: a whistleblower is now protected if they make an emergency disclosure or public interest disclosure to a Member of Parliament or a journalist.

     

  5. Broadening of Court powers: the Courts now have much broader discretion to order injunctive relief, an apology be made, exemplary damages and “any other order the court thinks appropriate” in favour of the discloser.

     

  6. Whistleblower policy: publicly listed or large proprietary companies must have a whistleblower policy in place - it is an offence not to.

     

  7. Personal work-related grievances: employers will breathe a collective sigh of relief to learn that personal work-related grievances are not covered by the new laws. This will include, amongst other things:
    1. An interpersonal conflict between the discloser and another employee;
    2. A decision relating to the terms and conditions of engagement of the discloser; and
    3. A decision to suspend, terminate or discipline the discloser.

 

Why is this important for employers?

The changes are imminent so it is important that your business is across them, including how to approach a protected disclosure if it occurs. If you already have a disclosure policy in place, it should be reviewed and updated before the new laws take effect.

Whilst the whistleblower protections only require publicly listed companies and large proprietary companies to have a policy in place, it is best practice for all employers to have one that sets out how it will approach and receive protected disclosures. This also helps to ensure your workers are across what their obligations are, and do not inadvertently contravene a requirement under the new laws.

If you aren’t sure what the changes will mean for your business, or whether you will be required to have a whistleblower policy in place, please contact a member of our Employment, Safety and Regulatory team to discuss further.


 

Acknowledgements

We would like to acknowledge the contribution of Nicole Davis to this article.

Further Reading