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Whistleblower Policy

Whistleblower Policy

Whistleblower Policy & Procedures

Version 1 | 17th December 2019

Contents
1. What is the purpose of this policy?
2. Who does this policy apply to?
3. Who can be an Eligible Whistleblower?
4. What matters does this policy apply to?
5. What matters are excluded from this policy?
6. Who can receive a disclosure internally?
7. Who can receive a disclosure externally?
8. How can I make a public interest or emergency disclosure?
9. How can I make a disclosure?
9.1 Internal reporting
9.2 External reporting
9.3 Online reporting
9.4 Anonymous disclosures
10. What legal protections are available to disclosers?
10.1 Identity protection
10.2 Protection from detrimental conduct
10.3 Compensation and other remedies
10.4 Civil, criminal and administration liability
11. How are disclosures handled and investigated?
12. How do we ensure fair treatment of individuals mentioned in a disclosure?
13. What are your obligations as a discloser?
14. How do we ensure the policy is easily accessible and understood?
15. How often will this policy be reviewed?
16. Who can I contact with queries on this policy?

1. What is the purpose of this policy?
On The Run Pty Ltd (OTR) is committed to the highest standards of conduct in all of our business activities, and to promoting and supporting a culture of open, honest and ethical behaviour, corporate compliance and good corporate governance. It is an organisation where individuals can – and should – speak up if they observe or reasonably suspect conduct that concerns them in relation to this organisation, as set out in this policy.

The purpose of this policy is to:

  • provide individuals with an understanding of what can be disclosed under this policy;
  • demonstrate the importance OTR places on ensuring a safe and supportive environment where individuals feel confident to raise relevant concerns;
  • assist to create a culture within OTR that encourages individuals to speak up and raise relevant concerns;
  • explain the processes for disclosing relevant concerns, including what happens when a disclosure is made; and
  • outline how individuals will be protected if a disclosure is made.

2. Who does this policy apply to?
This policy applies to directors, employees, contractors, subcontractors, agents, consultants and volunteers of OTR. It also applies to Eligible Whistleblowers.

3. Who can be an Eligible Whistleblower?
An Eligible Whistleblower is an individual who makes a disclosure of Reportable Conduct in accordance with this policy and in doing so, is afforded protection as a whistleblower under the Corporations Act 2001 or Taxation Administration Act 1953.
An Eligible Whistleblower can be any of the following:

  • an officer or employee (e.g. current and former employees who are permanent, part-time, fixed-term or temporary, interns, secondees, managers and directors);
  • a supplier of services or goods to OTR (whether paid or unpaid), including their employees (e.g. current and former contractors, consultants, service providers and business partners);
  • an associate of OTR; or
  • a relative, dependent or spouse of an individual referred to above (e.g. relatives, dependants or spouses of current and former employees, contractors, consultants, service providers, suppliers and business partners).

4. What matters does this policy apply to?
This policy covers the types of disclosures that qualify for protection under the Corporations Act 2001 or the Taxation Administration Act 1953 (Reportable Conduct).
Reportable Conduct refers to any information that an individual (referred to in this policy as a ‘discloser’) has reasonable grounds to suspect is misconduct or an improper state of affairs or circumstances in relation to OTR and discloses it to an Eligible Recipient (as defined in paragraph 6) in accordance with this policy.
Examples of Reportable Conduct may include (but are not limited to):

  • illegal conduct (such as theft, violence, harassment or intimidation, criminal damage to property or other breaches of state or federal law);
  • financial irregularities;
  • money laundering;
  • misappropriation of funds;
  • offering or accepting a bribe;
  • misconduct or an improper state of affairs or circumstances in relation to OTR’s tax affairs;
  • conduct that is potentially damaging to OTR, an OTR employee or a third party (such as unsafe work practices, environmental damage or health risks);
  • a breach of any legal or regulatory requirements;
  • harassment, discrimination, victimisation or bullying (other than personal work-related grievances); or
  • engaging in or threatening to engage in detrimental conduct against a person who has made a disclosure or is believed or suspected to have made, or is planning to make, a disclosure.

5. What matters are excluded from this policy?
Reportable Conduct does not include personal work-related grievances and do not qualify for protection under the Corporations Act 2001. These grievances remain under the jurisdiction of the Fair Work Act 2009.
Personal work-related grievances relate to the discloser’s current or former employment and have implications for the discloser personally, but do not:

  • have any other significant implications for OTR; or
  • relate to any conduct, or alleged conduct, about Reportable Conduct.

Some examples of personal work-related grievances include:

  • an interpersonal conflict between the discloser and another employee; or
  • a decision that does not involve a breach of workplace laws; or
  • a decision about the engagement, transfer or promotion of the discloser; or
  • a decision about the terms and conditions of engagement of the discloser; or
  • a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

Personal work-related grievances should be reported in accordance with OTR’s Grievance Policy.

There are circumstances in which a personal work-related grievance may still qualify for protection under the Corporations Act 2001. Some examples include if:

  • it includes information about misconduct, or information about misconduct includes or is accompanied by a personal work-related grievance (i.e. a mixed report); or
  • OTR has breached employment or other laws punishable by imprisonment for a period of 12 months or more, engaged in conduct that represents a danger to the public, or the disclosure relates to information that suggests misconduct beyond the discloser’s personal circumstances; or
  • the discloser suffers from or is threatened with detriment for making a disclosure of Reportable Conduct; or
  • the discloser seeks legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act 2001.

If a discloser is unsure whether to make a disclosure under this policy or the Grievance Policy, OTR’s preference is to make the disclosure under this policy in the first instance. The person receiving the disclosure will provide the appropriate guidance.

6. Who can receive a disclosure internally?
Eligible Recipients are authorised under this policy to receive disclosures of Reportable Conduct. In the context of this organisation, these individuals are:

  • Directors;
  • the Chief Executive Officer;
  • a Senior Manager (who is deemed to be a person who holds a General Manger title or above);
  • the Whistleblower Protection Officer (see paragraph 10.2 for details of the WPO’s role); or
  • auditors.

A discloser must make a disclosure directly to an Eligible Recipient to be able to qualify for protection as a whistleblower under the Corporations Act 2001 or Taxation Administration Act 1953.

7. Who can receive a disclosure externally?
A disclosure of Reportable Conduct can also be made to the following external entities and qualify for protection under the Corporations Act 2001 or Tax Administration Act 1953:

  • Australian Securities and Investments Commission (ASIC);
  • Australian Prudential Regulatory Authority (APRA); or
  • Australian Taxation Office (ATO).

Disclosures to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the whistleblower provisions in the Corporations Act 2001 or Taxation Administration Act 1953 are also protected (even if the legal practitioner concludes that a disclosure does not relate to Reportable Conduct).

8. How can I make a public interest or emergency disclosure?
Disclosures can be made to a journalist or parliamentarian in circumstances where the information is in the public interest or the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment.
There are strict legal criteria for making disclosures in these circumstances. Disclosers are encouraged to seek independent legal advice prior to making a public interest disclosure or an emergency disclosure.

9. How can I make a disclosure?

9.1 Internal reporting
Disclosures of Reportable Conduct can be made to an Eligible Recipient in person or by telephone.
The discloser must first inform the Eligible Recipient that they wish to make a report under this policy.

9.2 External reporting
Disclosures of Reportable Conduct can be made as follows:

  • to ASIC using their online form available at www.asic.gov.au or in writing to: Australian Securities and Investments Commission GPO Box 98287 BRISBANE QLD 4001

(for full details, visit: https://asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/how-asic-handles-whistleblower-reports/)

  • to APRA by email: pid@apra.gov.au or in writing to: Chief Risk Officer APRA GPO Box 9836 SYDNEY NSW 2001

(for full details, visit https://www.apra.gov.au/become-a-whistleblower-and-make-a-public-interest-disclosure)

9.3 Online reporting
Disclosers can also make a disclosure of Reportable Conduct using the online Whistleblower Form available on Perenet and the Peregrine Corporation website. This avenue allows disclosers to make an anonymous disclosure, if that is preferred (see paragraph 9.4 in relation to anonymous disclosures).

9.4 Anonymous disclosures
A disclosure of Reportable Conduct can be made anonymously and still be protected under the Corporations Act 2001 or Taxation Administration Act 1953. Disclosers can choose to remain anonymous while making the initial disclosure, over the course of an investigation and after an investigation is finalised. Disclosers can refuse to answer questions they feel could reveal their identity at any time throughout the process, including during any follow-up conversations.

While disclosers are encouraged to share their identity when making a disclosure (as it will make it easier for OTR to thoroughly investigate the disclosure), there is no requirement to do so. The disclosure will be assessed in the same way as if the discloser’s identity had been revealed, however there may be some practical limitations in conducting an investigation.

Disclosers may choose to adopt a pseudonym for the purpose of their disclosure in circumstances where their identity may be known to some individuals (e.g. a supervisor, the person the Reportable Conduct was disclosed to, etc.) but they prefer that it not be disclosed to others.
All anonymous disclosures are directed to OTR’s Whistleblower Protection Officer (WPO) in the first instance (see paragraph 10.2 for details of the WPO’s role).

10. What legal protections are available to disclosers?
An individual may qualify for certain protections under the Corporations Act 2001 or Taxation Administration Act 1953 if they are an Eligible Whistleblower who has made a disclosure of Reportable Conduct to an Eligible Recipient in accordance with this policy. These protections are as follows.

10.1 Identity protection
If a disclosure of Reportable Conduct is made under this policy, the discloser’s identity will be protected. That is, OTR cannot disclose the discloser’s identity or any information (obtained directly or indirectly because the discloser made a disclosure that qualifies for protection) that is likely to identify them.
OTR will only do so:

  • to ASIC, APRA or a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or
  • to a legal practitioner for the purposes of obtaining legal advice (or legal representation about the whistleblower laws); or
  • with the discloser’s consent.

 

OTR can disclose information contained in a disclosure with or without the discloser’s consent if:

  • the information does not include the discloser’s identity;
  • OTR has taken all reasonable steps to reduce the risk that the discloser will be identified from the information (using OTR’s risk management methodology); and
  • it is reasonably necessary for investigating the issues raised in the disclosure.

OTR takes its obligations very seriously and will ensure that this protection is afforded at all times under this policy. Specific mechanisms for protecting the confidentiality of a discloser’s identity are as follows:

  • reducing the risk that the discloser will be identified from the information contained in a disclosure by ensuring that:
    –  all personal information is redacted from any relevant documents;
    –  the discloser is referred to in a gender-neutral context;
    –  OTR contacts the discloser so that they can assist in identifying any aspects of their disclosure that could inadvertently identify them; and
    –  all disclosures are handled and investigated by qualified and trained employees; and
  • securing record-keeping and information-sharing processes, including ensuring that:
    –  all paper and electronic documents and other materials relating to disclosures are stored securely;
    –  access to all information relating to a disclosure is limited to those directly involved in managing and investigating the disclosure;
    –  only a restricted number of people who are directly involved in handling and investigating a disclosure are made aware of the discloser’s identity (subject to their consent) or information that is likely to lead to their identification;
    –  communications and documents relating to the investigation of a disclosure are not sent to an email address or printer that can be accessed by other employees; and
    –  each person who is involved in handling and investigating disclosures are adequately trained in relation to confidentiality requirements, including that the unauthorised disclosure of a discloser’s identity may be a criminal offence.

It is a breach of this policy and an offence for a person to identify a discloser or disclose information that is likely to lead to the identification of a discloser, outside of the exceptions noted in this paragraph 10.1.

10.2 Protection from detrimental conduct
A person cannot engage in conduct that causes detriment (or make a threat to cause detriment) to a discloser (or another person) in relation to a disclosure.
Some examples of detrimental conduct that are prohibited under the Corporations Act 2001 and Taxation Administration Act 1953 include (but are not limited to):

  • dismissal of an employee;
  • alteration of an employee’s position or duties to his or her disadvantage;
  • damage to a person’s reputation, property or business or financial position; and
  • harm or injury to a person, including psychological harm.

Examples of conduct that are not detrimental conduct include:

  • administrative action that is reasonable for the purpose of protecting a discloser from detriment (e.g. moving a discloser who has made a disclosure about their immediate work area to another store or work area to prevent them from detriment); and
  • managing a discloser’s unsatisfactory work performance in line with OTR’s performance management framework.

OTR will ensure that disclosers are protected from detrimental conduct through the following mechanisms:

  • risk assessments – as soon as possible after receiving a disclosure, OTR will conduct a risk assessment using OTR’s risk management methodology to assess the risk of detriment against a discloser and other persons, where relevant (e.g. other persons who might be suspected to have made a disclosure);
  • support services – existing employees will have access to the Employee Assistance Program (in accordance with OTR’s internal policy and processes on this service). Where required, OTR will also connect disclosers to third party support providers, such as Lifeline and Beyond Blue;
  • training – OTR will ensure that Eligible Recipients (as defined in paragraph 6) are aware of their responsibilities in relation to whistleblowing, including maintaining confidentiality, addressing the risks of isolation or harassment, managing conflicts and ensuring fairness when dealing with a discloser; and
  • procedures – OTR has procedures in place to advise disclosers as to how they can lodge a complaint if they have suffered detriment and how OTR responds to these complaints.

OTR has also appointed a Whistleblower Protection Officer (WPO) whose primary role is to safeguard a discloser’s interests when making a disclosure under this policy and will ensure the integrity of the reporting mechanism.
Specifically, the WPO’s role is to:

  • seek to protect disclosers from detrimental conduct;
  • assist in maintaining the well-being of disclosers;
  • maintain a discloser’s confidentiality (subject to any exceptions);
  • review and consider any complaints of detrimental conduct or any concern that a disclosure has not been dealt with in accordance with this policy; and
  • escalate any matter the WPO considers appropriate to the Whistleblower Investigation Officer (WIO) (see paragraph 11 for details of the WIO’s role).

The WPO may also receive disclosures of Reportable Conduct directly in circumstances where a discloser does not feel comfortable disclosing to any other person.
The WPO is the General Counsel.
Disclosers can seek independent legal advice or contact regulatory bodies, such as ASIC, APRA or ATO if they believe they have suffered detriment.

10.3 Compensation and other remedies
There may be circumstances where a discloser can receive compensation through the courts if they have suffered detriment in relation to a disclosure. Examples include payment of damages, reinstatement of employment, an apology or an injunction to prevent, stop or remedy detrimental conduct.
A discloser should seek independent legal advice in relation to their rights, where necessary.

10.4 Civil, criminal and administration liability
A discloser is protected from any of the following in relation to a disclosure of Reportable Conduct:

  • Civil liability – any legal action against the discloser for breach of an employment contract, duty of confidentiality or another contractual obligation;
  • Criminal liability – attempted prosecution of the discloser for breach of an employment contract, duty of confidentiality or another contractual obligation;
  • Administrative liability – disciplinary action for making the disclosure.

However, the protections available do not grant immunity for any misconduct the discloser has engaged in that is revealed in the disclosure.
These protections apply not only to internal disclosures, but to disclosures to legal practitioners, external disclosures to ASIC, APRA or ATO and public interest and emergency disclosures that are made in accordance with the Corporations Act 2001 or Taxation Administration Act 1953.

11. How are disclosures handled and investigated?
OTR has appointed a Whistleblower Investigation Officer (WIO).
The WIO will assess each disclosure received under this policy to determine whether the discloser qualifies for protection under the Corporations Act 2001 or Taxation Administration Act 1953 and whether a formal investigation is required.
The current WIO is the Risk & Compliance Manager.
In circumstances where it is unclear as to whether a discloser qualifies for protection, OTR will treat the discloser as though they were protected as an Eligible Whistleblower under the Corporations Act 2001 or Taxation Administration Act 1953 and undertake a formal investigation.
OTR will ensure that all disclosures are handled confidentially and in a timely manner.
In circumstances where a formal investigation of a disclosure is required, the process may vary depending on the nature of the disclosure. The WIO will consider the following factors when investigating a disclosure:

  • the nature and scope of the investigation;
  • who will lead the investigation (if the WIO is not the most appropriate person to do so);
  • the nature of any technical, financial or legal advice that may be required to support the investigation; and
  • the time frame for the investigation.

During the course of an investigation, the WIO will keep the discloser informed with regular updates (where possible) during key stages, including when the investigation has begun, when it is in progress and when it is finalised.
Where it is appropriate, the discloser will be provided with details of the outcome of the investigation.
At all times, investigations will be objective, fair and independent and will preserve confidentiality of the discloser and any individuals named, where appropriate.
If a discloser is not satisfied with the way in which a disclosure has been handled or investigated, the matter may be escalated for review in accordance with OTR’s review processes. OTR is not obliged to reopen an investigation if it finds that the investigation was conducted properly, or new information is either not available or would not change the findings of the investigation.

12. How do we ensure fair treatment of individuals mentioned in a disclosure?
OTR will take all reasonable steps to ensure the fair treatment of individuals who are mentioned in a disclosure of Reportable Conduct that qualifies for protection, including those who are the subject of a disclosure.
In doing so, OTR will ensure the following:

  • disclosures are handled confidentially, when it is practical and appropriate in the circumstances;
  • each disclosure will be initially assessed and may be subject to a formal investigation;
  • the objective of the investigation is to determine whether there is enough evidence to substantiate or refute matters disclosed;
  • when an investigation needs to be undertaken, the process will be objective, fair and independent;
  • an employee who is the subject of a disclosure will be advised about the subject matter of the disclosure as and when required by principles of natural justice and procedural fairness; and
  • an employee who is the subject of a disclosure may utilise OTR’s Employee Assistance Program.

When assessing the circumstances surrounding the disclosure, OTR will determine the most appropriate time to inform the individual who is the subject of a disclosure about the investigation. This will ensure that the effectiveness of an investigation is not compromised in any way (for example, such as when there may be concerns that an individual may destroy information or the disclosure needs to be referred to ASIC, APRA, ATO or the Federal Police). At all times, however, individuals will be informed prior to OTR making any adverse finding against them.

13. What are your obligations as a discloser?
When making a disclosure of Reportable Conduct under this policy, disclosers are expected to have reasonable grounds to suspect that the information they are disclosing is true. If the information turns out to be incorrect, a discloser will not be penalised and can still qualify for protection under the Corporations Act 2001 or Taxation Administration Act 1953.
However, a discloser must not make a disclosure they know is not true or is misleading.

14. How do we ensure the policy is easily accessible and understood?
This policy will be made available as follows:

  • posting the policy on Perenet and relevant OTR websites;
  • providing whistleblower training to employees on an as needs basis;
  • holding training sessions for employees who have specific obligations under the policy so that they can practically comply with those obligations (including but not limited to effectively receiving and handling disclosures, managing confidentiality and the prohibitions against detrimental conduct) – again, on an as needs basis;
  • setting out the policy in the employee handbook;
  • incorporating the policy in induction training for new employees; and
  • providing a copy of this policy to our external Eligible Recipients (e.g. auditors).

15. How often will this policy be reviewed?
This policy will be reviewed every two years (or more frequently, if required) to ensure that it remains consistent with all relevant legislative requirements and considers the changing nature of the organisation. Any substantive changes will be widely communicated to relevant individuals.

16. Who can I contact with queries on this policy?
General queries in relation to any aspect of this policy may be directed to the Risk & Compliance Manager in the first instance.