Whistleblower Policy

1. Purpose

Way Forward is committed to the highest standards of integrity and ethical conduct in its operations. As part of that commitment, if there is any wrongdoing affecting our organisation, we want to identify it as soon as possible. We therefore encourage staff and others to speak up about any wrongdoing they may observe.

This policy provides a safe way to raise concerns about specific wrongdoing, defined as Reportable Conduct (see Section 3).

2. Who the policy applies to

This policy applies to “eligible whistleblowers”.

An eligible whistleblower is an individual who is an officer or employee (current or former) of Way Forward, a supplier of goods and services to Way Forward (including the supplier’s employees) or an associate of Way Forward. An eligible whistleblower also includes any relatives, dependents or spouses of any of these individuals.

All eligible whistleblowers are entitled to the protections set out in Section 9. Section 8 sets out the specific protections for disclosures that qualify for protection under the Corporations Act.

3. What is reportable conduct?

3.1 Definition

You may make a report under this policy if you have reasonable grounds to believe that a Board Director, officer, employee, contractor, supplier, tenderer or other person who has business dealings with Way Forward has engaged in Reportable Conduct.

Reportable Conduct is defined as:

dishonest, fraudulent or corrupt activity, including bribery;
illegal activity (such as theft, drug sale or use, violence, harassment or intimidation, criminal damage to property or other breaches of state or federal law);
unethical conduct or serious breaches of Way Forwards’ policies. Examples could include dishonestly altering company records or data or adopting questionable accounting practices;
conduct potentially damaging to Way Forward, a Way Forward employee or a third party, such as unsafe work practices, environmental damage, health risks or abuse of Way Forward’s property or resources;
an abuse of authority e.g. a person using their position or delegated authority in a way that is improper, dishonest, coercive or inconsistent with good governance;
conduct that may cause financial loss to Way Forward or damage its reputation or be otherwise detrimental to Way Forward’s interests.

Reportable Conduct does not need to involve a contravention of a particular law.

Some disclosures of “Reportable Conduct” will qualify for specific legal protection under the Corporations Act. These protections are described in Section 8.

3.2 Personal workplace grievances

Personal workplace grievances are generally outside the scope of this policy and do not qualify for protection under the Corporations Act (see Section 8).

A personal workplace grievance is a concern about a matter that has implications for the whistleblower personally, but does not involve Reportable Conduct.

Examples include:

an interpersonal conflict between the whistleblower and another employee e.g. concerns about bullying or harassment;

a decision that does not involve a breach of workplace laws;

a decision about the engagement, transfer or promotion of the whistleblower;

a decision about the terms and conditions of engagement of the whistleblower; or

a decision to suspend or terminate the engagement of the whistleblower or other disciplinary action. (However, for the avoidance of doubt, if a decision of this nature is taken because a person has made, or proposes to make, a disclosure it may constitute unlawful conduct – see Section 8.5).

People with workplace related grievances are encouraged to raise them with their manager or the CEO.

A personal workplace-related grievance may qualify for protection in limited circumstances. These are:

mixed report – the disclosure includes information about misconduct, or the workplace grievance is accompanied by broader allegations of misconduct;

serious legal breach or public danger – the disclosure relates to conduct punishable by imprisonment for 12 months or more, conduct that poses a danger to the public, or misconduct that goes beyond the individual’s personal employment situation;

detriment for speaking up – the whistleblower suffers, or is threatened with, detrimental treatment because they made a disclosure;

seeking legal advice: The disclosure is made to a lawyer for the purpose of obtaining legal advice or representation about whistleblower protections.

4. Who can I make a disclosure to?

We encourage eligible whistleblowers to make disclosures to the Way Forward Whistleblower Protection Officer (WPO). The Way Forward WPO is the CEO.

For the purposes of this policy, the CEO may be contacted via WPO@wayforward.org.au.

The CEO can also be reached via phone (1300 045 502) and mail (Level 14, 333 Collins Street, Melbourne).

If the disclosure concerns the CEO, it should be made to the Chair of the Board. The Chair can be contacted via email at chair@wayforward.org.au

Eligible whistleblowers may also make disclosures to legal practitioners, regulatory bodies (such as ASIC, ACCC and the ACNC) and other external parties, journalists and members of Commonwealth, state and territory parliaments under certain circumstances.

A person may contact the WPO to obtain confidential information about this policy before making a disclosure.

5. How to make a disclosure

An eligible whistleblower may make a disclosure:

in writing (including by email);
verbally (by telephone or in person); or
anonymously.

Disclosures may be made outside normal business hours.

A disclosure should include as much information as possible, including:

the nature of the conduct;
the individuals involved;
dates, times and locations (if known);
how the whistleblower became aware of the matter; and
any supporting evidence.

Whistleblowers may choose to remain anonymous: while making a disclosure, during the investigation and after the investigation is finalised. They may refuse to answer questions that they feel could reveal their identity at any time. However, it may not be possible to undertake an investigation, or to bring it to a conclusion, if it is not possible to contact the whistleblower.

Way Forward encourages whistleblowers to maintain ongoing communication (for example if necessary, through an anonymous email address) to assist investigation and feedback.

6. Handling and investigating a disclosure

6.1 Assessment of disclosure

All disclosures will be assessed promptly to determine:

whether they qualify for protection under the Corporations Act;
the nature and seriousness of the allegations;
whether an investigation is required.

6.2 Declining to investigate

Way Forward may decline to investigate or pursue a report which is:

trivial, vexatious or has no substance; or
an unsubstantiated allegation which is found to have been made maliciously or is knowingly false.

Reports that fall under paragraphs (a) or (b) above will be viewed seriously and may lead to disciplinary action, including termination of employment in the case of staff, or the termination of the engagement if made by a contractor, supplier or tenderer.

A decision not to investigate a disclosure will be documented.

6.3 Investigation process

If an investigation is required, the WPO will arrange an internal or external investigation.

If the disclosure is investigated internally, the investigator will be a senior Way Forward staff member, not involved in the alleged Reportable Conduct.

If the disclosure involves the CEO, the Chair will appoint an independent external investigator.

Investigations will:

be fair, independent and objective;
focus on the substance of the disclosure, not the motive of the whistleblower;
be completed within a reasonable timeframe.

The investigator will gather evidence and may interview relevant parties.

The investigator will make findings based on facts.

Way Forward and any investigator will not disclose a whistleblower’s identity, or information that is likely to lead to their identification, except as permitted by law.

Information relating to a disclosure may be shared for the purpose of investigating the disclosure, provided that:

the whistleblower’s identity is not disclosed;
identifying details (such as name, role or other identifying information) have been removed; and
sharing the information is reasonably necessary to investigate the disclosure.

6.4 Documenting an investigation

The investigator will provide a written report to the WPO.

6.5 Feedback to the whistleblower

Subject to confidentiality and legal constraints, the WPO will acknowledge the disclosure by the whistleblower. The WPO will keep the whistleblower informed of:

whether investigation will proceed;
expected timeframes;
the outcome (to the extent it can be shared).

Specific disciplinary outcomes may not be disclosed due to privacy obligations.

6.6 Review of investigation

If a whistleblower is dissatisfied with the process, they may raise any concerns with the Chair of the Board.

7. Fair treatment of individuals mentioned in a disclosure

Individuals who are the subject of a disclosure will:

be treated fairly and in accordance with procedural fairness;
be informed of allegations at an appropriate time;
be given an opportunity to respond;
have access to support services.

Findings will only be made following proper investigation.

8. Legal protection under the Corporations Act

8.1 Overview

Some disclosures by an eligible whistleblower will qualify for specific protection under the Corporations Act. These protections are:

identity protection (confidentiality);
protection from detrimental acts or omissions;
civil, criminal and administrative liability protection; and
compensation and remedies.

There is more information about each of these protections in subsequent sections.

A whistleblower can still qualify for protection even if their disclosure turns out to be incorrect.

8.2 What disclosures are protected under the Corporations Act?

An eligible whistleblower will qualify for protections under the Corporations Act if the whistleblower has reasonable grounds to suspect that the information concerns:

misconduct; or
an improper state of affairs or circumstances in relation to Way Forward; or
a breach of the Corporations Act and other specific pieces of legislation or of instruments made under those pieces of legislation;^[1]
constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment of 12 months or more; or
conduct that represents a danger to the public or the stability of, or confidence in, the financial system.

“Misconduct” is defined to include fraud, negligence, default, breach of trust and breach of duty.

“Improper state of affairs or circumstances” is not defined in the law and is intentionally broad. The relevant regulatory guide from ASIC states that:

“’misconduct or an improper state of affairs or circumstances’ may not involve unlawful conduct in relation to the entity or a related body corporate of the entity but may indicate a systemic issue that the relevant regulator should know about to properly perform its functions. It may also relate to business behaviour and practices that may cause consumer harm.”[2]

The term “reasonable grounds to suspect” is based on the objective reasonableness of the whistleblower’s suspicion.

As an example, the types of conduct which may amount to a breach of the Corporations Act include:

failure to keep accurate financial records;
falsification of accounts;
failure of a director or other officer of the company to act with the care and diligence that a reasonable person would exercise, or to act in good faith in the best interests of the company;
failure of a director to give notice of any material personal interest in a matter relating to the affairs of the company.

A person disclosing information does not need to prove their allegations.

Anonymous disclosures are protected.

8.3 Emergency and public interest disclosures

In certain circumstances, a protected disclosure may be made to a journalist or parliamentarian if:

a prior disclosure has been made to ASIC, APRA or another Commonwealth body prescribed by regulation; and
specified timeframes and additional conditions are satisfied.

Whistleblowers should obtain independent legal advice before making such disclosures.

8.4 Identity protection (confidentiality)

Way Forward has an obligation to protect the identity of an eligible whistleblower. There is more information about how we will go about this process at Section 9.1.

There are however exceptions to the protection of confidentiality. These are disclosures:

to ASIC, APRA, or a member of the Australian Federal Police (within the

meaning of the Australian Federal Police Act 1979);

to a legal practitioner (for the purposes of obtaining legal advice or legal representation about the whistleblower provisions in the Corporations Act);
to a person or body prescribed by regulations; or
with the consent of the discloser.

Outside of these exceptions, it is illegal for a person to identify a whistleblower, or disclose information that is likely to lead to their identification.

Way Forward may however disclose information contained in a disclosure without the whistleblower’s consent for the purpose of investigating the disclosure, provided that:

the information does not include the whistleblower’s identity;
all information likely to identify the whistleblower has been removed;
the disclosure of that information is reasonably necessary for the purpose of investigating the disclosure.

If there is a breach of the legal obligation to provide confidentiality, the whistleblower can lodge a complaint with the WPO. A whistleblower can also lodge a complaint with a regulator. A whistleblower may also seek compensation or other remedies through the courts (see Section 8.6).

8.5 Prohibition on detrimental acts or omissions

Way Forward prohibits any form of detrimental treatment towards a person who makes, or proposes to make a disclosure that qualifies for protection under the Corporations Act.

Detrimental treatment includes:

dismissal of an employee;
injury of an employee in his or her employment;
alteration of an employee’s position or duties to his or her disadvantage;
discrimination between an employee and other employees of the same employer;
harassment or intimidation of a person;
harm or injury to a person, including psychological harm;
damage to a person’s property;
damage to a person’s reputation;
damage to a person’s business or financial position; or
any other damage to a person.

A threat may be express or implied, conditional or unconditional.

Detrimental conduct does not include:

administrative action that is reasonable for the purpose of protecting a whistleblower from detriment
managing a whistleblower’s unsatisfactory work performance, in line with Way Forward’s performance management framework.

It is an offence to breach confidentiality or to victimise a whistleblower.

8.6 Compensation and other remedies

A whistleblower (or any other employee or person) can seek compensation and other remedies through the courts if:

they suffer loss, damage or injury because of a disclosure; and
Way Forward failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct.

Other remedies may include financial compensation, apologies or reinstatement (if employment was terminated).

Whistleblowers are encouraged to seek independent legal advice.

8.7 Civil, criminal and administrative liability protection

A whistleblower is protected from the following in relation to their disclosure:

civil liability e.g. any legal action against the whistleblower for breach of an employment contract, duty of confidentiality or another contractual obligation;
criminal liability e.g. attempted prosecution of the whistleblower for unlawfully

releasing information, or other use of the disclosure against the whistleblower in

a prosecution (other than for making a false disclosure); and

administrative liability e.g. disciplinary action for making the disclosure.

These protections do not grant immunity for any misconduct a whistleblower has engaged in that is revealed in their disclosure.

[1] The legislation which is covered is: the 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; the SIS Act;

[2] ASIC Regulatory Guide 270 Whistleblower policies, p19.

9. Support and practical protection for whistleblowers

Way Forward will take the following practical steps to support and protect whistleblowers.

9.1 Confidentiality

The WPO will protect the confidentiality of a whistleblower by:

where possible, contacting the whistleblower to help identify certain aspects of their disclosure that could inadvertently identify them;

limiting information sharing to those directly involved in the investigation;

redacting identifying information where possible;

storing records securely with restricted access;

using pseudonyms where appropriate and using gender-neutral language.

9.2 Assessing the risk of detriment

Upon receiving a disclosure, the WPO will conduct a prompt risk assessment to identify and manage any risk of retaliation or detriment to the whistleblower or others who may be suspected of making the disclosure. This will involve a process of:

risk identification – assessing if anyone has a motive to cause detriment;

risk analysis and evaluation – assessing the likelihood and severity of each potential risk;

risk control – implementing strategies to prevent or contain the risks;

risk monitoring – ongoing monitoring will be put in place e.g. the risks may change as an investigation progresses.

9.3 Mitigating risks

The WPO is responsible for implementing strategies to prevent or contain the risk of detriment. This may involve:

managing workplace impacts – taking reasonable steps to minimise stress, performance impacts or other challenges arising from the disclosure or investigation;

adjusting work arrangements if necessary – where appropriate, implementing practical measures to protect the whistleblower, such as temporary changes to reporting lines, work location, duties or other workplace arrangements;

ensuring management accountability – requiring managers to maintain confidentiality, prevent harassment or isolation, manage conflicts appropriately and ensure fair treatment in performance or disciplinary processes;

providing a complaints pathway – enabling whistleblowers to raise concerns if they experience detriment, with such concerns investigated independently where appropriate;

Intervening if detriment occurs – Investigating and addressing any detrimental conduct, including taking disciplinary action where required and implementing remedial measures.

In addition, a whistleblower may seek independent legal advice or contact regulatory bodies, such as ASIC or the ATO, if they believe they have suffered detriment.

9.4 Providing support

The WPO will make the whistleblower aware of the Way Forward Employee Assistance Program.

They may also suggest other appropriate professional support and will check in regularly with the whistleblower.

10. Tax Whistleblowers

The Taxation Administration Act 1953 also includes special protections for whistleblowers reporting tax avoidance to the Australian Taxation Office. These include:

identity protection;
the protection of disclosures to your lawyer;
civil, criminal and administrative liability protection;
detrimental conduct protection; and
compensation and other remedies.

There is more information on the ATO website, including an online tip off form, at https://www.ato.gov.au/about-ato/whistleblowers

11. Reporting to the Board

Management will provide an annual summary to the Board about this policy including:

number of disclosures received;
categories of allegations;
status and outcomes (in de-identified form);
any systemic issues identified;
actions taken to improve governance.

12. Availability of Whistleblower policy

This policy is available on the Way Forward shared drive. It is also included in the induction of any new employees.

Way Forward will provide regular training to staff and officers on whistleblower rights and responsibilities.

The policy is available on request to anyone who is, or has been, in a relationship with Way Forward.

The policy is also published on Way Forward’s website.