May 22

What should be included in your Whistleblower Policy?

Are you part of a company required under the new Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 to have a compliant Whistleblower Policy in place?

The Act applies to public companies, proprietary companies designated ‘large’ (you can find relevant definitions of large here: Australian Securities and Investments Commission) and to proprietary companies that are trustees of a registrable superannuation entity.

The enhanced Whistleblower protections take effect from 1st July 2019 which means that many companies will be required to have a compliant Whistleblower policy in place from 1st January 2020.

What makes Whistleblowing so hard?

Whistleblowing has a parlous reputation because so many whistleblowers report that, even when they have been successful in exposing wrongdoing, they pay a high personal price in terms of stress, exclusion and damage to their career.

Griffith University has been at the forefront of research into Whistleblowing. Its Whistle While You Work Project drew on the experiences of 17,778 individuals across 46 organisations in Australia and New Zealand.

The results showed that the majority – 81.6 per cent – of those who reported cases of unethical behaviour in their workplaces faced repercussions for speaking up, with 42 per cent of reporters feeling mistreated before their complaint.

What’s good about the new legislation?

Thankfully for employers and employees, the Whistle While You Work Project informed elements of the new legislation.

Griffith’s Professor of Public Policy and Law, A J Brown, was a member of the Commonwealth Government’s expert advisory panel on whistleblower protection. He writes that the new legislation moves beyond the prior scenario where whistleblowers were only afforded protections if they could prove deliberate, direct criminal “victimisation”.

The new legislation puts a laudable emphasis on the need for organisations and regulators to reduce the potential of detriment to whistleblowers.

The Act requires a workplace policy that must name support mechanisms for whistleblowers. This is designed to address risks of repercussions or retaliation.

Professor Brown said that this is “the world’s first ever requirement to not simply have a policy ‘on paper’, but spell out exactly how they plan to “support and protect” those who speak up, before anyone starts taking out reprisals.”

What does the legislation say about policies?

With regard to disclosures that qualify for protection under the legislation, the bill specifies that your organisation’s whistleblower policy must set out the following details:

  • The protections available to whistleblowers;
  • To whom disclosures can be made and how they can be made;
  • How the company will support whistleblowers and protect them from detriment;
  • How the company will investigate disclosures;
  • How the fair treatment of all employees mentioned in disclosures will be ensured; and
  • How the Policy is to be made available to officers and employees of the company.

There is a refreshing level of accountability involved.

5 key actions to take

  1. Write a policy, make sure people know about it and ensure that it explains exactly how to go about making a report.
  2. Assure would-be whistleblowers that they will be supported and protected by giving details and examples.
  3. Let them know how the investigation process ahead will work.
  4. Explain that fair treatment will be extended not just to them but also to the accused parties and anyone else named in the complaint.
  5. De-mystify the road ahead and you’ll find more people will be willing to step up and tell you about risks and problems that exist in your organisation – enabling you to act.

An effective whistleblowing regime is something every business should welcome since it gives them the chance to hear about and address issues before they become expensive and damaging.

Now is the time to review your whistleblower protection regime. When tested, the mere existence of the policy won’t be enough – organisations will be accountable for the undertakings and protections they articulate within it.

As Professor A J Brown points out, “Now, any “detrimental” acts or omissions can result in an employer’s liability for compensation, including a failure to prevent such impacts, such as by having no protection policy or failing to implement it.”

What else can my organisation do to improve whistleblower protection?

You should also consider:

  • Appointing a Whistleblower/Governance/Compliance Officer who is charged with making an immediate Risk Assessment when a report is made. The Risk Assessment should consider the confidentiality of the whistleblower’s identity, stress, lost productivity, isolation and conflict.
  • Offering a Support Person to the whistleblower and have them together create an agreed schedule of communication.
  • Encouraging staff to raise concerns about corporate misconduct if they become aware of it.
  • Consider whether your organisational culture is open to respectful discussion about ethical issues.

Ask yourself: if I became aware of corporate misconduct, would I trust my organisation to handle my concerns confidentially and respectfully? Would I be protected from reprisals? If you’re at all unsure, now is the time for a proactive review of your organisation’s whistleblower protection regime.

About Rose Scott

As manager of Worklogic’s Integrity Line service, Rose Scott ensures that people making a workplace complaint are given a calm and secure reception. She also leads Worklogic’s policy development team, helping organisations set the standard for ethical and constructive behaviour at work. Please contact us for an obligation-free, confidential discussion to review and refresh the policies at your workplace.