On 15th August 2019, law firm Bartier Perry, kindly hosted Women on Board members, along with their clients for an informative session on the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2018 (Cth), including the importance of triaging and planning the management of the complaint and the policies and systems needed for effective complaint handling.
James Mattson, Bartier Perry’s head of Workplace Law and Culture, provided the audience with an excellent overview of the law, the implication for non-executive and executive directors along with actions that should be taken to ensure compliance.
There was a lot of great advice and real-life examples which encouraged lively audience participation and discussion. For me, the top takeaways were: -
- Make sure you have an up to date Whistleblowers Policy and ensure that the board and other relevant members of the executive and management have been trained on the processes and procedures. Whistleblowing is not just another type of employee grievance process.
- When a whistleblowing event happens, executing the process quickly and getting it right from the very start will help ensure the company and individuals conform to the law. Ignoring or slow walking the complaint could result in the individual being legally allowed to go to the media.
- Unlike some other HR grievance policies, best practice is to ensure the individual(s) whistleblower (the disclosure) is communicated with frequently and included in the process.
- Make sure the appropriate individuals in your teams know who is an eligible whistleblower, who is an eligible recipient of what a whistleblower wants to communicate and that the definition of a disclosable matter is well understood. And unlike previous legislation, there is no “good faith” requirement.
One of the key actions that can help ensure that the organisation and individuals are compliant to the new laws is to maintain the confidentiality of the disclosure. Unless the disclosure grants permission for others to know what they have disclosed you as the recipient cannot disclose to anyone else. Protecting the identity of the disclosure is paramount.
While it is now law to advise employees of their whistleblower rights, transparency in relation to what are disclosable matters is also a pro-active way to manage risk. Disclosable matters include:
- The new protections apply to the disclosure of information if the whistleblower “has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances” in relation to the company or a related body corporate.
- Without limitation, the protections apply to the disclosure of information that indicates conduct that: is an offence against, or contravention of, a range of specified banking, finance, corporate and insurance legislation; is an offence against “any other law of the Commonwealth that is punishable by imprisonment of 12 months or more”; or represents a danger to the public or the financial system.
- There is no good faith requirement.
A disclosable matter does NOT include: Disclosure of information that concerns a personal work related grievance of the whistleblower is not protected under Corporations Act 2001. A personal work-related grievance is defined as “a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally” and the information “does not have significant implications for the” company.
Women on Boards would like to thank James for his presentation and Bartier Perry for hosting the event and helping to ensure that non-executive and executive directors are aware of their obligations under this new law.