As seen in the March edition of Bowls Queensland’s Queensland Bowler.
Whistleblowers play an important role in exposing misconduct and harm to consumers and the community. To encourage individuals to come forward and protect them when they do, the Corporations Act 2001 (Corporations Act) gives certain people legal rights and protections as whistleblowers. In July last year, the whistleblower protections in the Corporations Act were expanded to provide greater protections for whistleblowers. This expansion means that some clubs have been required to have a whistleblower policy since 1 January 2020.
What is a ‘whistleblower policy’?
A whistleblower policy is a document that outlines the protections available to whistleblowers, the manner in which information can be disclosed, support and protection available as well as how fair treatment of employees will be maintained. The document must be publicly available and easily accessible for all employees and other persons engaged by them.
Which clubs need a whistleblower policy?
If your club is a company limited by guarantee (a public company) you may be caught by the regime. However, charities and non-for-profit organisations structured in this manner will not need a whistleblower policy if their annual consolidated revenue is less than $1 million.
If your club is structured as an incorporated association, a whistleblower policy must be maintained if two of the following apply:
- greater than $50 million in consolidated revenue;
- more than 100 employees.
A failure to comply with this requirement carries a $12,600 penalty.
Even though predominantly it is larger clubs in Queensland that need to maintain a whistleblower policy, it is worth considering whether clubs that aren’t obliged to make this change would benefit by having a whistleblower policy. In fact, the broader obligations imported under the whistleblower laws (such as the handling of personal information and managing the conduct and treatment of the whistleblower) and the internal policies and procedures you have in place to deal with these issues may be best dealt with by a whistleblower policy.
Which whistleblowers are eligible for protection?
Any officer or employee, contractor or employee of a contractor, relative or spouse or associate of an organisation will be entitled to protection. These whistleblowers can make disclosures to ASIC, APRA and other prescribed Commonwealth authorities, officers or senior managers of the relevant organisation or an auditor or actuary for the organisation.
How are whistleblowers protected?
It is illegal for a person to reveal or disclose the identity of a whistleblower, or information likely to lead to the identification of a whistleblower. The Corporations Act also prohibits (through a criminal offence and civil penalty) someone from causing or threatening harm to a person because they believe or suspect they have made a whistleblower disclosure.
The Corporations Act protects individuals against legal action related to making the whistleblower disclosure, including:
- criminal prosecution (the disclosure cannot be used against the whistleblower in a prosecution, unless the disclosure is false);
- civil litigation (such as for breach of an employment contract, duty of confidentiality, or other contractual obligation); or
- administrative action (including disciplinary action).
Implementing a whistleblower policy is an administrative task, but it is a box that needs checking to avoid potential penalties. If your club is amongst the organisations that are required to maintain a public whistleblower policy, but you don’t have one, you should contact a member of our Clubs team today.