In Australia, the Corporations Act 2001, under Pt9.4AAA outlines the requirements for the whistleblower protection regime.  Under current legislative provisions the following types of entities are required to have whistleblower policies and protections in place:

• Public companies;
• Large proprietary companies; and
• Proprietary companies that are a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993) of a registrable superannuation entity.

These provisions also apply to public companies limited by guarantee that operate as not for profit or for charitable purposes.  ASIC provides for public companies limited by guarantee that have consolidated revenue of less than $1 million to be exempt from these whistleblowing provisions.

Policy Requirements

Whistleblowing policies are required under the Corporations Act 2001 and must contain the following details:

• the protections available to whistleblowers, including protections under the Corporations Act;
• to whom disclosures that qualify for protection under the Corporations Act may be made, and how they may be made;
• how the entity will support whistleblowers and protect them from detriment;
• how the entity will investigate disclosures that qualify for protection under the Corporations Act;
• how the entity will ensure fair treatment of its employees who are mentioned in disclosures that qualify for protection, or its employees who are the subject of disclosures;
• how the policy will be made available to officers and employees of the entity; and
• any matters prescribed by regulations.

The legislative provisions give protections to the following groups of individuals of the entity:

• Officers of the entity;
• Employees of the entity;
• An individual who supplies goods or services to the entity (whether paid or unpaid);
• An employee of a person who supplies goods or services to the entity (whether paid or unpaid);
• An individual who is an Associate of the entity. An associate is defined as someone with whom the company would usually act in concert with; and
• Any relatives or dependents of the above.

The act also provides for provisions for those covered where the entity is a superannuation entity.

The provisions stipulate who may receive whistleblowing disclosures.  Eligible recipients include:

• a director, company secretary, company officer, or senior manager of the company or organisation, or a related company or organisation;
• an auditor, or a member of the audit team, of the company or organisation, or a related company or organisation; and
• a person authorised by the company or organisation to receive whistleblower disclosures.

Key Points

Identity Protection is Fundamental

A fundamental principle of whistleblower provisions is the protection of the identity of the whistleblower.  This includes providing information that is likely to lead to the identification of the whistleblower.  Therefore, setting up protocols to deal with the receipt, storage and confidentiality of all information related to the whistleblowing event is essential.

It Is Not Just About Management

Whistleblower policies often only consider protections where employees / management are the subject of whistleblower complaints.  However, it is also important to understand that those charged with governance may also be subject to such complaints. Therefore, policies should consider where and how such matters are dealt with when these situations arise.

How Pilot can Help

At Pilot we can assist with these sensitive matters in the following ways:

• Development of policy frameworks;
• Investigating whistleblowing allegations; and
• Acting as an approved recipient of whistleblower allegations.

Contact Pilot

If you would like to learn more or would like assistance with any of the above matters, please contact Chris King at cking@pilotpartners.com.au or (07) 3023 1300.