Australia’s first whistleblower to bring legal action in Federal Court speaks about the new era of protection for workers.

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 was passed by the Senate of the Australian Federal Parliament on 6 December 2018, marking the beginning of a new era of enhanced whistleblower protections in corporate Australia.

The Bill ran out of time to be passed by the House of Representatives on the last sitting day of the Australian federal calendar, but it will be passed when parliament resumes in early 2019 with bipartisan support. The new requirements will apply to all listed companies as well as large, private companies. But all organisations in Australia – including all levels of the public sector, smaller private companies and not-for-profits – will need to be aware of the benchmarks these requirements will set as the “new norm”.

World class protection

Australia will move from having one of the weakest corporate whistleblower protection frameworks to one of the world’s strongest. HR departments will need to put significant focus on understanding these new changes and educating staff. Tough new penalties, including million-dollar fines and criminal prosecutions, will mean compliance with the new requirements should be a top priority.

When it comes to the performance of Australian organisations in this area, there is wide spectrum of quality. Some are doing a fantastic job of encouraging employees to speak out and managing whistleblower reports with rigour and independence, to maximise best outcomes for those reporting issues and the organisation itself.

Other organisations are digging their heels in hoping that, if they keep ignoring the reports and stifling communication channels, the problem will somehow magically disappear. Wherever your organisation is on the spectrum, you will need to provide leadership to all levels to communicate the importance of getting on board with these new requirements.

What HR needs to know

HR departments will need to ensure the following new requirements are managed appropriately:

• Organisations will require a whistleblower policy that specifies exactly how they plan to “support and protect” those who speak up;
• Organisations will need to strictly protect a whistleblower’s identity and mistakes, even innocent ones, may be punishable by large fines to the individual and the organisation;
• Organisations will be required to train all staff on their whistleblower policy;
• Any detrimental acts or omissions could result in an organisation being liable for compensation – including a failure to adequately implement their whistleblower policy; and
• Staff who receive and investigate whistleblower reports will require specific training to ensure they are adhering to the new requirements.

What’s changed?

As a former whistleblower, I know how high the stakes are when reporting issues, especially if the process is not handled appropriately. The damage that can be done to the whistleblower and the organisation can be enormous if confidentiality and anti-reprisal processes are not adhered to.

In 2016 I was the first whistleblower in Australia to bring a legal action in the Federal Court of Australia using whistleblower protections under the existing Corporations Act. The new enhanced protections that will be provided under the Corporations Act may create a sharp spike in claims similar to Fair Work, as lawyers and litigants will be more confident of successful outcomes.

Organisations should now take steps  to proactively address known problem areas and issues previously put in the “too hard basket”, instead of waiting for a whistleblower report to be filed and ending up on the front page of the newspapers.

Whether it’s financial fraud and corruption, sexual harassment and bullying, behaviour that doesn’t meet community standards, or illegal activity, the public is much more interested in hearing whistleblowers stories and supporting their actions than ever before.

The speed and momentum of this shift in public perception, combined with the #metoo global juggernaut and the subsequent catastrophic consequences that can occur to organisational value, demands attention. HR departments are on the frontline of managing the new whistleblower protection changes and will need to be ready to act.

Sally McDow is a culture and reputation expert at CPR Partners.