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:

1. The consolidated revenue for the financial year of the company and the entities it controls (if any) is over $50 million or more;
2. 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;
3. 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

1. Who within the company will be authorised to receive whistleblower disclosures on behalf of the company?
2. 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.
3. How will the information received as part of the whistleblower disclosure be securely stored?
4. How the whistleblower disclosure should be assessed as to:
   1. Whether it is of a type that provides legal protection to the whistleblower;
   2. The severity of the nature of the issues disclosed (including the introduction of a grading scale); and
   3. The investigation process that should be undertaken and by whom.
5. Is it necessary or desirable to protect investigation materials (including the final report) by legal professional privilege?
6. 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.