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In brief - Public companies and large proprietary
companies will need to comply, but all employers would be wise to
have a compliant policy in place and consider training
These reforms aim to help protect those who "blow the
whistle" or make disclosures about corporate, financial or tax
misconduct.
It is generally acknowledged that whistleblowers perform a vital
role in the community in exposing fraud, corruption and other
misconduct. Whistleblowing ensures that corporate entities and
organisations are held to account and operate within the confines
of the law. It is therefore necessary to protect whistleblowers and
promote open, transparent and accountable practices within the
public and private sectors.
Key elements of the proposed whistleblower
laws
If enacted, the key elements of the legislation include:
Expansion of whistleblower protection to current and
former officers and directors, employees, contractors,
suppliers, unpaid workers, and an employee's relatives or
dependants.
Expansion of the types of disclosures that will be protected in
relation to corporate whistleblowers, including disclosures about
"misconduct" or "an improper state of affairs or
circumstances".
Introduction of a whistleblower protection regime for
protection of individuals who disclose breaches of tax laws and tax
avoidance.
Expansion of the group of people eligible to receive a
disclosure, which now includes an officer or senior manager of the
entity, an auditor, actuary, or regulators such as ASIC or
APRA.
Replacement of the current "good faith" test with an
objective test requiring that the whistleblower has
"reasonable grounds to suspect" the wrongdoing.
Employers will be comforted to know that "personal
work-related grievances" will be excluded from
protection.
Introduction of an "emergency disclosure" concept
which provides protections for whistleblowers who report concerns
to members of Parliament or to the media.
A requirement that certain entities must have a whistleblower
policy (see below for further information).
Allowing anonymous disclosures.
Increased civil and criminal penalties for disclosing a
whistleblower's identity (without consent) or victimising a
whistleblower.
Expansion of the orders that can be made by a court in favour
of a whistleblower suffering detriment to include apologies,
injunctions, financial compensation and reinstatement.
Any whistleblower seeking court orders for detriment suffered
bears the initial onus of proof to point to evidence that suggests
a reasonable possibility that detriment has occurred.
Certain entities must have a whistleblower policy that
contains specific requirements
The legislation will require public companies and large
proprietary companies to have a whistleblower policy in place.
Failure to comply with this requirement is a criminal offence and
significant penalties may apply.
The policy must contain:
the protections available to whistleblowers, including the
protections available under the legislation
how and to whom an individual can make a disclosure
how the company will support whistleblowers and protect them
from detriment
how the company will investigate disclosures that qualify for
protection under the legislation
how the company will ensure fair treatment of employees who are
mentioned in whistleblower disclosures, and
how the policy will be made available
What should employers do to prepare for the new
whistleblower laws?
Employers are encouraged to have a compliant policy in place in
the lead up to the commencement of the new laws in early 2019, this
includes reviewing any existing policies to ensure compliance with
the changes or implementing a comprehensive new policy.
Employers are also encouraged to consider appropriate training
to deal with the new legislation, particularly for managers and
supervisors who will be classified as recipients of a
disclosure.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In the recent decision of Jeremy Lee v Superior Wood Pty Ltd [2018] FWC 4762, an employee was dismissed from his job because he refused to provide his fingerprint to his employer.
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