Whistleblower Policy

 

1. Introduction

1.1 Application

This policy applies to:
(a) all officers and employees engaged by BSR Australia Ltd (ABN 84 122 529 695) and any subsidiary including BSR Franchising Pty Ltd (together ‘BSR Group’); and
(b) all other persons and entities that are eligible recipients and eligible whistleblowers as defined under this policy.

 

1.2 Definitions

Corporations Act means the Corporations Act 2001 (Cth).
Specified Laws means the following Commonwealth legislation: Corporations Act, the Australian Securities and Investments Commission Act 2001, the Banking Act 1959, the Financial Sector (Collection of Data) Act 2001, the Insurance Act 1973, the Life Insurance Act 1995, the National Consumer Credit Protection Act 2009, and the Superannuation Industry (Supervision) Act 1993.

 

1.3 Purpose

The Corporations Act and the Tax Administration Act 1953 (Cth) provide for protections for ‘eligible whistleblowers’ (Scheme).
The purpose of this policy is to set out:
(a) information about the types of disclosures that qualify for protection under the Scheme;
(b) information about the protections available to whistleblowers under the Scheme;
(c) information about to whom disclosures that qualify for protection under the Scheme may be made, and how they may be made;
(d) information about how the BSR Group will support whistleblowers and protect them from detrimental conduct made because of their disclosure;
(e) information about how the BSR Group will investigate disclosures that qualify for protection;
(f) information about how the BSR Group will ensure fair treatment of employees of who are mentioned in disclosures that qualify for protection, or to whom such disclosures relate;
(g) information about how this policy is to be made available to officers and employees of BSR Group and
(h) any matters prescribed by regulation.

 

2. Scope of the Whistleblower Protection Scheme

2.1 Who is an ‘eligible whistleblower’?

The following persons are capable of being ‘eligible whistleblowers’:
(a) any officer of the BSR Group;
(a) any employee of the BSR Group; and
(b) any person who supplies goods or services to the BSR Group or its employees.
The concept of ‘eligible whistleblowers’ also extends to any persons who previously held any of the above positions or functions and to family members of any of the above persons.

 

2.2 What disclosures are protected?

The following are the primary types of disclosures that ‘qualify’ for protection under the Scheme:

(a) disclosures by an ‘eligible whistleblower’ to ASIC, APRA, the Commissioner of Taxation, a prescribed Commonwealth authority;
(b) disclosures to a legal practitioner for the purposes of obtaining legal advice in relation to the Scheme (even in the event that the legal practitioner concludes that a disclosure does not relate to a ‘disclosable matter’); or
(c) disclosures by an ‘eligible whistleblower’ to an ‘eligible recipient’,
if:
(d) the discloser has ‘reasonable grounds’;
(e) to ‘suspect’;

(i) that the disclosed information concerns misconduct or an improper state of affairs or circumstances in relation to any member of the BSR Group or their related bodies corporate; and/or

(i) indicates that the BSR Group, a related body corporate or one of their officers or employees has engaged in conduct that constitutes:

(A) an offence against or contravention of the Specified Laws or any instrument made under those Laws;
(B) an offence against other Commonwealth legislation that is punishable by imprisonment for 12 months or more;
(C) or represents a danger to the public

 

Examples of wrongdoing that could be disclosable matters
• illegal conduct, such as theft, dealing in, or use of illicit drugs, violence or threatened violence, and criminal damage against property;
• fraud, money laundering or misappropriation of funds;
• offering or accepting a bribe;
• financial irregularities;
• failure to comply with, or breach of, legal or regulatory requirements;
• conduct that creates an unsafe environment; and
• 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 planning to make a disclosure.
A discloser can still qualify for protection under the Scheme even if their disclosure turns out to be incorrect, provided it was not deliberate false reporting.

 

2.3 Who is an ‘eligible recipient’ within BSR Group?

BSR Group encourages disclosers to make a disclosure to its dedicated complaints hotline in the first instance: fairwork@bsrgroup.com.au. Alternatively you may choose to make your disclosure to any of the following ‘eligible recipients’:
(a) any officer (director or company secretary) of the BSR Group;
(b) any of BSR Group’s ‘senior managers’ (these persons are the Chief Executive Officer, the Chief Financial Officer, the Chief Operations Officer, the Chief Development Officer, the Chief Marketing Officer, and the Human Resources Manager); and
(c) BSR Group’s auditors (internal or external) or actuaries, C/- Anthony Whyte, Partner BDO, Level 10, 12 Creek Street Brisbane QLD 4000 Tel: +61 7 3237 5999.

 

2.4 Personal work-related grievances

A disclosure does not qualify for protection under the Scheme to the extent that the information disclosed:
(a) concerns a personal work-related grievance of the discloser; and
(b) does not concern a contravention, or an alleged contravention of part 3.3 of this Policy.

For the purposes of the Whistleblower Protection Scheme, a disclosure is a ‘personal work-related grievance’ if:
(a) the information concerns a grievance about any matter in relation to the eligible whistleblower’s employment, or former employment, having (or tending to have) implications for the eligible whistleblower personally; and
(b) the information:
(i) does not have significant implications for BSR Group, or another regulated entity, that do not relate to the discloser; and
(ii) does not relate to any conduct, or alleged conduct, about a disclosable matter as set out in Item 2.2 of this policy.

 

Examples of personal work-related grievances include:
(a) an interpersonal conflict between the disclosure and another employee;
(b) a decision that does not involve a breach of workplace laws;
(c) a decision about the engagement, transfer or promotion of the discloser;
(d) a decision about the terms and conditions of engagement of the discloser; or
(e) a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

However, a personal work-related grievance may still qualify for protection if:
(a) it includes information about misconduct, or information about misconduct includes or is accompanied by a personal work-related grievance (mixed report);
(b) BSR Group 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;
(c) the discloser suffers from or is threatened with detriment for making a disclosure; or
(d) the discloser seeks legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act.

 

2.5 Public interest disclosures

There is an additional category of disclosures called ‘public interest disclosures’ that qualify for protection under the Scheme. These can be made to journalists and members of Parliament but only if the eligible whistleblower complies with the following strict requirements:

(a) the eligible whistleblower has made a qualifying disclosure to ASIC, APRA, or a prescribed Commonwealth authority;

(b) at least 90 days has passed since the qualifying disclosure was made;

(c) the eligible whistleblower does not have reasonable grounds to believe that action is being, or has been, taken to address the matters to which the qualifying disclosure related;

(d) the eligible whistleblower has reasonable grounds to believe that making a public interest disclosure would be in the public interest;

(e) after 90 days have passed, the eligible whistleblower must give the body to which the qualifying disclosure was originally made, a written notification that:

 

(i) includes sufficient information to identify the qualifying disclosure; and

(ii) states that the eligible whistleblower intends to make a public interest disclosure; and

 

(f) the extent of the information disclosed in the public interest disclosure is no greater than to inform the journalist or member of Parliament of the misconduct or improper state of affairs or circumstances, or other conduct falling within the scope of the Scheme.

 

2.6 Emergency disclosures

There is an additional category of disclosures called ’emergency disclosures’. These can be made to journalists and members of Parliament but only if the discloser complies with the following strict requirements:
(a) the discloser must have first made a qualifying disclosure to ASIC, APRA or a prescribed Commonwealth authority;
(b) the discloser has reasonable grounds to believe that information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; and
(c) the discloser gave notice to the body to which the qualifying disclosure was made that states:
(i) that they intend to make an emergency disclosure; and
(ii) includes sufficient information to identify the qualifying disclosure; and
(d) the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform the journalist or member of Parliament of the substantial and imminent danger.

 

2.7 Deliberate False Reporting

BSR discourages deliberate false reporting (i.e. a report that the discloser knows to be untrue). If any investigation of a disclosure demonstrates that it was not made on objectively reasonable grounds, it will not be protected under the Scheme.

However, disclosers who have some but not all details leading to a suspicion should not be discouraged from reporting under this policy.

 

3. Protections

 

3.1 Identity Protection (Confidentiality)

Strict confidentiality obligations apply in respect of any disclosures that qualify for protection under the Whistleblower Protection Scheme. Unless the eligible whistleblower consents, their identity or any information that may lead to the disclosure of their identity must not be disclosed by the recipient to any other person (subject to the exceptions set out below).
To avoid inadvertent breaches of confidentiality obligations under the Scheme, eligible whistleblowers are encouraged to consent to their identity being disclosed. Being able to share an eligible whistleblower’s identity will also assist in an efficient investigation of the matters that an eligible whistleblower discloses.

However:
(a) Anonymous disclosures are still capable of being protected (though it may be difficult to investigate these disclosures effectively, particularly if the discloser has refused to provide, or has not provided, a means of contacting them).
(b) If a discloser does not consent to their identity being disclosed to any other persons, it will still be lawful to:
(i) disclose their identity to:

 

(A) ASIC, APRA, the AFP or the Commissioner of Taxation;
(B) a legal practitioner for the purposes of obtaining advice about the disclosure; or
(C) to a body prescribed by the regulations that are made under the Scheme,
(ii) disclose information that may lead to the identification of the individual if this is reasonably necessary for the purpose of investigating the qualifying disclosure.

 

3.2 Civil, criminal and administrative liability protection

Under the Scheme, a discloser is protected from any of the following in relation to their protected disclosure:
(a) Civil liability (e.g. any legal action against the disclosure for breach of an employment contract, duty of confidentiality or another contractual obligation);
(b) criminal liability (e.g. attempted prosecution of the disclosure for unlawfully releasing information – other than for making a false disclosure); or
(c) administrative liability (e.g. disciplinary action for making the disclosure).
However, the protections do not grant immunity for any misconduct a discloser has engaged in that is revealed in their disclosure.

 

3.3 Protection from Detrimental Acts or Omissions

The Scheme makes it unlawful for a person to engage in conduct against another person that causes or will cause a detriment:
(a) in circumstances where the person believes or suspects that the other person or a third person made, may have made, proposes to make or could make a qualifying disclosure; and
(b) if the belief held by that person is the reason or part of the reason for their conduct.
Threats of detriments will also be unlawful if:
(a) the person making the threat intended to cause fear that a detriment would be carried out or was reckless as to whether the person against who it was directed would fear the threatened detriment being carried out; and
(b) the threat was made because the person makes or may make a qualifying disclosure.

 

What is detrimental conduct?

The meaning of ‘detriment’ is very broad and includes:
(a) dismissing an employee;
(b) injuring an employee in their employment;
(c) altering an employee’s position or duties to their disadvantage;
(d) discriminating between an employee and other employees;
(e) harassing or intimidating a person;
(f) harming or injuring a person;
(g) damaging a person’s property, reputation, business or financial position; and
(h) any other damage to a person.

Examples of actions that are not detrimental conduct are:
(a) 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 office to protect them from detriment); and
(b) managing a discloser’s unsatisfactory work performance, if the action is in line with the entity’s performance management framework.

 

3.4 Compensation

A discloser (or any other employee or person) can seek compensation and other remedies through the courts if:
(a) They suffer loss, damage or injury because of a disclosure; and
(b) BSR Group failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct.

A discloser may seek independent legal advice or to contact the appropriate regulatory body such as ASIC, APRA, or the ATO if they believe they have suffered detriment.

 

4. Support, investigations and fair treatment

The BSR Group is committed to transparency and to building an environment in which personnel feel free to raise legitimate issues relating to BSR Group’s operations.
Whenever an eligible disclosure under the Scheme is made, BSR Group will implement the following mechanisms for protecting the disclosure from detriment:

• Each disclosure will be assessed by qualified staff to determine whether it qualifies for protection under the Scheme; and whether a formal in-depth investigation is required. Disclosers may be requested to complete a prescribed form in order to facilitate this assessment process.

• Eligible disclosures will often be investigated internally. However, it may sometimes be appropriate for investigations to be carried out externally on behalf of BSR Group. Whether an investigation will be carried out externally will depend on the seriousness of the allegations and who they relate to.

 

Identity Protection (Confidentiality)

• Where possible, the discloser will be contacted to help them identify certain aspects of their disclosure that could inadvertently identify them;
• Access to information relating to a disclosure will be limited to those directly involved in managing and investigating the disclosure;
• To the extent practical and appropriate in the circumstances, all personal information or reference to the discloser witnessing an event will be redacted and the discloser will be referred to in a gender-neutral context;
• All paper and electronic documents and other materials relating to disclosures will be stored securely; and
• Each person who is involved in handling and investigating a disclosure will be reminded about the confidentiality requirements.

 

Protection from Detrimental Acts or Omissions

• As soon as possible after receiving a disclosure, qualified staff will assess the risk of detriment against a discloser and other persons, advise the discloser regarding available support services and propose actions for protecting a discloser from risk detriment (e.g. by reassigning the discloser to another role at the same level (if possible), or making modifications to the discloser’s workplace location or the way they perform their duties
• If detriment has already occurred, BSR Group will investigate and address the detrimental conduct, such as by taking disciplinary action, or allowing the discloser to take extended leave or during the investigation.
• Investigations will be conducted in a timely manner and the process may vary depending on the nature of the disclosure.
• A discloser will be provided with regular updates, if the discloser can be contacted (which may include via anonymous channels). The frequency and timeframe may vary depending on the nature of the disclosure. There may be circumstances where it may not be appropriate to provide details of the outcome to the disclosure.

 

5. Review

BSR Group is not obliged to reopen an investigation and can conclude a review 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.
A discloser may lodge a complaint with a regulator such as ASIC, APRA or the ATO if they are not satisfied with the outcome of BSR Group’s investigation.