Tread carefully with employee whistle-blowers

Joe Murphy explains what employers need to know about new protections for whistle-blowers

27 Jun 2019

Julian Assange is probably the most controversial of whistle-blowers to hit the headlines in the last 10 years. However, still murky waters surround his prosecution for whistle-blower acts committed, in the face of allegations that his whistleblowing conduct also amounts to criminal conduct.

Closer to home, financial and aged-care institutions have been subjected to rigorous investigation following whistle-blower allegations. These are extreme examples of what has happened recently when employees speak out. The recent expansion of whistle-blower laws in Australia means that corporations and other institutions across the country (eg insurers, superannuation trusts) must be conscious of, and compliant with, their obligations and the new protections that whistle-blowers have under the law. The substantive provisions will commence on 1 July 2019.

The protections and obligations arise where:

the individual reporting the conduct is an ‘eligible whistle-blower’ (employees, officers and suppliers of companies, as well as their family members)
the eligible whistleblower reports the conduct to an ‘eligible recipient’ (certain officers, senior managers, audit team members, actuaries, trustees)
the eligible whistleblower has ‘reasonable grounds’ to ‘suspect’ that the conduct is reportable conduct
the disclosure is made to ASIC, APRA or a prescribed Commonwealth authority
in specific circumstances a public interest or emergency disclosure may be made to a member of parliament or a journalist.

The types of conduct that are reportable are quite broadly described and include:

misconduct in relation to a corporation or other regulated entity
an improper state of affairs in relation to a corporation or other regulated entity
a contravention of, or offence under, the Corporations Act 2001, the ASIC Act, the Banking Act 1959, the Financial Sector (Collection of Data) Act 2001, the Insurance Act 1973, the Life Insurance Act 1995, the National Consumer Credit Protection Act 2009, the Superannuation Industry (Supervision) Act 1993, or an instrument made under one of these Acts
a contravention of, or offence under, a law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more
conduct that represents a danger to the public or the financial system.

The risks associated with getting it wrong once an employee or other eligible whistle-blower makes a disclosure are significant

Employees are not entitled to use the whistleblower protection or process in relation to a ‘personal work-related grievance’ (ie about their own employment situation, dismissal, demotion, adverse action or personal grievance).

However, once a disclosure is appropriately made, then it is important to ensure that the identity is not directly or indirectly disclosed except in limited circumstances. Penalties (up to $1.05m for individuals and up to $10.5m for companies) and compensation orders can follow if the conduct in breach causes detriment (or amounts to a threat to cause detriment).

The risks associated with getting it wrong once an employee or other eligible whistleblower makes a disclosure are too signifi - cant not to ensure your business has in place the correct policy, procedures and complementary training of all sta so that legitimate whistleblowers can be protected and those that may seek the protection for their own purposes (eg where the nature of the issue is actually about their personal work-related grievance) can be dealt with in accordance with ordinary complaints and disciplinary procedures.

It is essential that organisations are well prepared for the new law with compliant policies. Ensure you have identified your eligible recipients for whistleblower complaints within the business and trained them to handle these cases. Educate the business from the top down on building a culture that encourages best practice behaviour.

ABLA provides Whistleblower Policies and can assist in reviewing the implementation of appropriate procedures across your business.

Joe Murphy is the managing director of National Workplace at Australian Business Lawyers & Advisors (ABLA). ABLA is trusted by the Australian Chamber of Commerce and Industry and is the leading voice for business in the Fair Work Commission. ABLA was voted #1 Employment & Workplace Law Firm of the Year 2018. Contact Joe on 1300 565 846 or at [email protected] if you have any questions raised by this article.