1 January 2020 Deadline Looming for Mandatory Whistleblower Policy
By Chao Ni, Principal, MST Lawyers
Mandatory Requirement To Have A Whistleblower Policy
From 1 January 2020, it will be mandatory for all public companies, large proprietary companies and registerable superannuation entities to have a whistleblower policy that complies with section 1317AI of the Corporations Act 2001 (Cth).
A “large proprietary company” for FY19/20 means a company that satisfies at least 2 of the following conditions:
- The consolidated revenue for the financial year of the company and the entities it controls (if any) is over $50 million or more;
- The value of the consolidated gross assets at the end of the financial year of the company and the entities it controls (if any) is $25 million or more;
- The company and the entities it controls (if any) employs 100 or more employees at the end of the financial year.
Non-compliance carries hefty monetary penalties under the Corporations Act 2001 (Cth).
Though the mandatory requirement to have a whistleblower policy only applies to public companies, large proprietary companies and registerable superannuation entities, we recommend that all small proprietary companies also implement a whistleblower policy or review their existing policies so that they can appropriate deal with whistleblower disclosures going forward.
Important Questions To Consider
- Who within the company will be authorised to receive whistleblower disclosures on behalf of the company?
- How will these authorised officers be trained on the whistleblower policy? Note that a person could be convicted of a criminal offence if they disclose the identity of a whistleblower without consent.
- How will the information received as part of the whistleblower disclosure be securely stored?
- How the whistleblower disclosure should be assessed as to:
- Whether it is of a type that provides legal protection to the whistleblower;
- The severity of the nature of the issues disclosed (including the introduction of a grading scale); and
- The investigation process that should be undertaken and by whom.
- Is it necessary or desirable to protect investigation materials (including the final report) by legal professional privilege?
- How to make the whistleblower policy available to all employees and what training, if any, should be given?
MST Lawyers offers fixed fee solutions for the implementation of a compliant whistleblower policy. To find out more about this policy deadline, please contact the MST Lawyers’ Employment Law team by email or by telephone +61 3 8540 0200.