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Corporate Whistleblowing and Whistleblowers

Corporate Whistleblowing and Whistleblowers

What You Need To Know About Corporate Whistleblowing and Whistleblowers

What is a Whistleblower?

A Whistleblower is any individual who has inside knowledge of an organisation who then provides information to an authorised recipient that they reasonably believe evidence of wrongdoing.

Protections for corporate whistleblowing and whistleblowers

Whistleblowers play an important role in identifying and calling out misconduct and harm to consumers and the community. Whistleblowers who come forward with their concerns have certain rights and protections under the Corporations Act 2001 (Corporations Act).

Protection under an organisation’s rules and policies

If an organisation has rules and policies outlining how people who raise a concern are protected, they must be followed.

According to ASIC, the person making the disclosure must be an eligible person to receive protection.  They must be a current or former:

  • employee of the company or organisation your disclosure is about, or a related company or organisation;
  • officer (usually that means a director or company secretary) of the company or organisation your disclosure is about, or a related company or organisation;
  • person (or employee of a person or entity) who has supplied goods or services to the company or organisation your disclosure is about, or a related company or organisation – this can be either paid or unpaid, and can include volunteers;
  • associate of the company or organisation, usually a person with whom the company or organisation acts in concert;
  • trustee, custodian or investment manager of a superannuation entity, or an officer, employee or goods or service provider to a trustee, custodian or investment manager; or
  • spouse, relative or dependant of one of the people referred to above, or a dependant of such an individual’s spouse.
The organisation that your disclosure is about must be:
  • a company;
  • a bank or authorised deposit-taking institution;
  • a provider of general insurance or life insurance;
  • a superannuation entity or a superannuation trustee; or
  • an incorporated association or other body corporate that is a trading or financial corporation – this includes not-for-profit organisations that trade in goods or services, lend or borrow money, or provide other financial services, and their trading or financial activities make up a sufficiently significant proportion of their overall activities (not all not-for-profit organisations are subject to the whistleblower protections).
You must make your disclosure to:
  • 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;
  • an actuary of the company or organisation, or a related company or organisation;
  • a person authorised by the company or organisation to receive whistleblower disclosures;
  • ASIC or the Australian Prudential Regulation Authority (APRA); or
  • your lawyer, if disclosing to obtain legal advice or representation under the whistleblower provisions of the Corporations Act.

You must have reasonable grounds to suspect that the information you are disclosing about the company or organisation concerns misconducts an improper state of affairs that is a breach of the Corporations Act, financial sector laws enforced by ASCI or APRA or an offence against any law of the Commonwealth.

Corporate Whistleblowing and Whistleblowers

Protection under the Fair Work (Registered Organisations) Act 2009 (RO Act)

You are protected even if the matter is only reported to the registered organisation as long as it meets certain eligibility and could have been reported to the Commission. To be protected by the Registered Organisations Act, the concern must be made to the right person and be about ‘disclosable conduct’.

Disclosable conduct

Disclosable conduct is an act (or failure to act) that indicates that someone may have breached the Registered Organisations Act, Fair Work Act 2009 or Competition and Consumer Act 2010, or broken any other law.

To be protected under the Registered Organisations Act, the concern must be reported to the right person.

This includes:

  • the registered organisation you belong to
  • the General Manager or the staff of the Commission
  • a Fair Work Commission tribunal member
  • a Fair Work Ombudsman staff member.

Protection against reprisals

According to the Fair Work Commission, whistleblowers are protected against reprisals. This includes:

  • any civil or criminal liability for reporting the concern (they are only liable for their own misconduct)
  • any contractual or other remedy being enforced by the investigation.
A reprisal includes:
  • dismissal
  • disadvantage them in their employment or position
  • discrimination between them and other employees
  • harassment or intimidation
  • harm or injury (including psychological injury)
  • damage to property
  • damage to reputation.
Corporate Whistleblowing and Whistleblowers

Get legal advice

Only a properly accredited legal practitioner who understands your circumstances can give you legal advice as to the process and your rights. This is especially important if you are thinking of acting on the rights the whistleblower protections give you.

AussieLegal has different partner firms that can help you navigate the legal complexities of whistleblower protections and ensure your rights are protected. It is crucial to seek guidance from experienced professionals in this area to avoid any potential legal pitfalls.

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