MDC Legal’ Renae Harg and Miette Xamon are discussing the new laws providing greater protection for whistleblowers that have been passed through federal parliament and take effect on 1 July 2019. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Whistleblower Act) was introduced to provide for a single, strengthened whistleblower regime to cover the corporate, financial and credit sectors.
What are the changes?
The Whistleblower Act:
- provides protection for a wider range of people to make protected disclosures, including former officers, employees and suppliers and family members of present and former officers, employees and suppliers
- provides protection to whistleblowers if the protected disclosure was made to an ‘eligible recipient’, which includes officers, senior managers, the company’s auditors, actuaries or any other person authorised by the company
- provides for the making of protected disclosures about a wider range of misconduct, noting there is a carve out for ‘personal work-related grievances’. Previously, only disclosures regarding breaches of the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001 were protected
- allows for anonymous disclosures
- removes the requirement for ‘good faith’, with the person making the disclosure only needing to have objective reasonable grounds to suspect wrongdoing
- allows ‘emergency’ or ‘public interest’ disclosures to be made to members of Parliament or the media in certain circumstances
- expands the protections available to whistleblowers who suffer reprisals from making a protected disclosure
- provides for a reverse onus of proof when a person seeks compensation, after the person has established that they have suffered detriment.
Parts of the Whistleblower Act in Australia will apply retrospectively to disclosures that were made prior to the commencement of the Act, including provisions relating to compensation and remedies.
Employer action: what’s required by you
In addition to the changes set out above, the Whistleblower Act provides that public companies and large proprietary companies must have a compliant whistleblower policy in place no later than 1 January 2020. Failure to have a compliant policy in place by 1 January 2020 may result in penalties of up to $12,600 (60 penalty units) for a company.
Large proprietary companies are those companies which satisfy at least two of the following:
- the consolidated revenue for the financial year of the company and any entities it controls is $25 million or more;
- the value of the consolidated gross assets at the end of the financial year of the company and any entities it controls is $12.5 million or more;
- the company and any entities it controls have 50 or more employees at the end of the financial year.
Whilst the mandatory requirement for a policy does not commence until 1 January 2020, we recommend that employers implement a compliant whistleblowing policy as soon as possible. Key changes under the Whistleblowing Act commence on 1 July 2019 and employers should ensure their policies and procedures reflect their obligations to avoid any breaches of the new legislation.
Employers should also conduct internal training on the new legislation to provide potential recipients of a disclosure with information on their obligations.
Renae Harg (BA LLB, University of Western Australia) is a Senior Associate at MDC Legal. Renae has practiced in employment law since 2013. Prior to commencing with MDC Legal, Renae worked at a global law firm and boutique WA employment law firm. Renae has a broad range of experience in providing employment and workplace relations advice and has acted for individuals as well as small, medium and global employers. Renae provides advice and assistance in all employment law matters, including termination of employment, unfair dismissals, adverse action, discrimination, drafting of employment contracts and policies, enterprise bargaining, post-employment restraints and workplace investigations. Contact Renae at renaeharg@mdclegal.com.au
Miette Xamon is a Law Clerk at MDC Legal, Volunteer at the Employment Law Centre of WA, Driver in the Australian Army Reserves. Connect with Miette via LinkedIn
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