1. Description/Purpose

This policy outlines ELACCA’s (the Organisation) process for the reporting of any suspected misconduct, or improper state of affairs or circumstances (such as fraudulent, unlawful or unethical behaviour) involving the Organisation or its business or practices and how the Organisation will ensure that any persons making a disclosure may do so in confidence and without retribution.

This policy is available on the Organisation’s website at: elacca.org.au and can be accessed by all officers and employees of the Organisation and any other person who is eligible to make a protected disclosure.

This policy is designed to complement, not replace, normal communication and reporting channels within the Organisation, and staff members are encouraged to continue to raise matters at any time with their managers.

The Organisation is committed to operating in accordance with the law and good professional practice. This policy is an important tool for helping ELACCA to identify any wrongdoing that may cause harm to the organisation, its employees, its members or to others.

The Organisation encourages the notification of any Reportable Conduct (defined in section 5 below) in strict confidence and anonymity and without retribution.

The benefits to the Organisation in having a Whistleblower Policy include:

• promoting a culture of openness, honesty and transparency;
• ensuring Eligible Disclosers (defined in section 4 below) can recognise Reportable Conduct;
• ensuring Eligible Disclosers understand and have confidence in the framework and process for notifying of Reportable Conduct (i.e. how and to whom notification should be made); and
• advising Eligible Disclosers about how the Company will investigate protected disclosures.

2. Scope

This document applies to all ELACCA employees, officers and contractors.

3. References

This document should be read in conjunction with ELACCA Policies.

4. Policy Details

4.1 Who Qualifies for Protected Disclosures?

A person may qualify for whistleblower protections under the Corporations Act 2001 (Cth) (Corporations Act) if they:

• are an Eligible Discloser;
• make a disclosure pertaining to Reportable Conduct; and
• make a disclosure to an Eligible Recipient or another person or body mentioned in section 6 (‘Who must a report be made to?’) below.

An Eligible Discloser that makes a report of Reportable Conduct under this Policy is referred to as a “Whistleblower”.

4.2 Who is an Eligible Discloser?

“Eligible Disclosers” includes:

• Any current officers, employees, paid or unpaid suppliers or their employees, or other external associates of the Organisation;
• Any former officers, employees, paid or unpaid suppliers or their employees, or other external associates of the Organisation; and
• Any family members or dependants of any of the above or a dependant of any such individual’s spouse.

4.3 What is Reportable Conduct?

Reportable Conduct includes any conduct where an Eligible Discloser has reasonable grounds to suspect that there is misconduct or an improper state of affairs or circumstances in relation to the Organisation (“Reportable Conduct”). Reportable Conduct includes, but is not limited to:

• dishonest, fraudulent or corrupt activity;
• bribery;
• money laundering;
• terrorist financing;
• illegal, unlawful or corrupt activity such as theft or misuse of the Company’s funds or property;
• unethical behaviour or wilful breach of the Organisation’s policies and procedures;
• unsafe work practices, environmental damage or activity that constitutes a serious risk to public health or safety;
• behaviour that involves harassment, discrimination, victimisation or bullying;
• any other serious improper conduct that may cause material financial or reputational loss or damage to the Organisation;
• sexual offences (including against, with or in the presence of a child);
• sexual misconduct (including against, with or in the presence of a child);
• physical violence (including against, with or in the presence of a child);
• behaviour that causes significant emotional or psychological harm; and/or
• significant neglect.

Reportable Conduct does not include conduct to the extent that it concerns a personal or professional work-related grievance, unless the personal work-related grievance is about detriment suffered by or threatened against the Eligible Discloser. Protection from detriment is discussed in section 8.

Examples of work-related grievances which are not within the scope of protected disclosures include:

• an interpersonal conflict between the discloser and another team member;
• a decision not to promote the discloser;
• a decision not to alter the terms of the discloser’s employment (such as by granting the discloser an increase in remuneration); and
• a decision to suspend or terminate the discloser’s employment or to otherwise take disciplinary action with respect to the discloser (such as by issuing a formal warning).

If any Eligible Discloser has reasonable grounds to suspect there has been any kind of Reportable Conduct, they are encouraged to report such conduct to an Eligible Recipient (defined in section 6 below).

An Eligible Discloser will have ‘reasonable grounds’ to suspect that something constitutes (or potentially constitutes) Reportable Conduct if they have some factual basis for their suspicion which, in light of the circumstances and context, provides reasonable grounds for that suspicion. The onus is not on the Eligible Discloser to show that the suspected conduct has occurred or is occurring and the Eligible Discloser’s motive is not relevant to determining whether a disclosure is eligible for protection.

4.4 Making a Report

1. a) Who must a report be made to?

To qualify for whistleblower protections under the Corporations Act, an Eligible Discloser must make a disclosure directly to:

• an Eligible Recipient;
• a lawyer for the purposes of obtaining legal advice or representation on the operation of the whistleblower regime; or
• ASIC, APRA or another Commonwealth body that is prescribed by the regulations made under the Corporations Act.

An Eligible Discloser may qualify for protection regardless of which of the above channels they choose to report through.

Whistleblower protections under the Corporations Act are also available for public interest or emergency disclosures. These disclosures are discussed further below in this section.

1. b) Who is an Eligible Recipient?

To qualify for protected disclosure, reports of Reportable Conduct may be made to an Eligible Recipient. Eligible Disclosers should be aware that their immediate manager or supervisor may not be an Eligible Recipient. An Eligible Recipient is any of the following:

• the Chief Executive Officer or other senior managers of the Organisation;
• an Officer of the Organisation, being a Director (member of the Board) or Secretary;
• an auditor, or member of an audit team conducting an audit of the Organisation;
• the Australian Securities and Investments Commission (ASIC);
• the Australian Prudential and Regulatory Authority (APRA) or another Commonwealth body prescribed by regulation and qualifying for protection under the Corporations Act; or
• a lawyer, for the purpose of legal representation regarding the Whistleblower protections.
• c) How to make a report to an Eligible Recipient

The co-chairs of ELACCA are officers of the Organisation and may receive protected disclosures from Eligible Discloser. Contact details for the co-chairs are:

Mr Pejman Okhovat
G8 Education
PO Box 515
Varsity Lakes Qld 4227

Email: pejman.okhovat@g8education.edu.au

Ms Kay Turner
SDN Children’s Services
PO Box 654
Broadway NSW 2007

Email: [email protected].au

The Organisation will provide a confidential environment, free from retribution, for any Eligible Discloser who wishes to raise Reportable Conduct to an Eligible Recipient. Reports of Reportable Conduct to an Eligible Recipient may be made anonymously where a person wishes to not disclose their personal details. All information provided by a Whistleblower, and the identity of the Whistleblower must be treated strictly confidentially by the Eligible Recipient.

The protections set out in section 8 below exist for Whistleblowers making reports of Reportable Conduct. Where claims are found to be vexatious or baseless or there are no reasonable grounds to suspect Reportable Conduct, disciplinary action may be taken.

1. d) Public interest disclosures

Whistleblower protections are also available for a Whistleblower whose concerns relate to matters in the public interest.

A disclosure of information qualifies as a public interest disclosure where a Whistleblower: 5

• has previously made a report to an Eligible Recipient or another person or body mentioned in section 6 (‘Who must a report be made to?’) above and at least 90 days have passed since the previous report was made;
• does not have reasonable grounds to believe that action to address their concerns is being or has been taken;
• has reasonable grounds to believe that reporting their concerns to a journalist or parliamentarian would be in the public interest; and
• after the end of the 90 day period referred to above, has provided the person or body to which the previous disclosure was made written notification that includes sufficient information to identify the previous report and states the Whistleblower’s intention to make a public interest disclosure,

then, the Whistleblower may report their concerns about the Reportable Conduct to a person who works in a professional capacity as a journalist or a parliamentarian. The extent of the information disclosed should be no greater than is necessary to inform the recipient of the concerns.

Where a person discloses concerns to the public in another way, the whistleblower protections do not apply.

1. e) Emergency disclosures

Whistleblower protections are also available for a Whistleblower whose concerns relate to a matter of emergency.

A disclosure of information qualifies as an emergency disclosure where a Whistleblower:

• has previously made a report to a report to an Eligible Recipient or another person or body mentioned in section 6 (‘Who must a report be made to?’) above;
• has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment; and
• has provided the relevant person or body to which the previous disclosure was made written notification that includes sufficient information to identify the previous report and states the Whistleblower’s intention to make an emergency disclosure,

then, the Whistleblower may report their concerns to a person who works in a professional capacity as a journalist or a parliamentarian. The extent of the information disclosed should be no greater than is necessary to inform the recipient of the substantial and imminent danger.

4.5 Investigating a Report

The Officers of the Organisation will investigate (themselves or with the assistance of appropriately skilled staff or contractors of the Organisation) all Eligible Disclosures of which it is notified as soon as reasonably practicable in a fair and objective manner applying the principles of procedural fairness.

The Officers of the Organisation will ensure that any employee who is the subject of a disclosure made under this Policy is treated fairly during the course of the investigation of Reportable Conduct. An employee will have the opportunity to be informed of, and respond to, any report of Reportable Conduct made against them during the investigation.

The investigation process will be undertaken in a manner which maintains the confidentiality of the Whistleblower’s identity. The details of the Reportable Conduct will only be accessed by those with a legitimate business reason to do so as part of the investigation process.

The role of the Officers of the Organisation will also be to support and assess the welfare and needs of the Whistleblower or to respond to any concerns or reports of victimisation or detriment made by the Whistleblower. For example, the Officers will assess whether changes are required to the Whistleblower’s working arrangements in the circumstances to prevent victimisation or detriment and whether the Whistleblower should also be provided with access to support services including counselling.

The Officers of the Organisation will provide feedback to the Whistleblower on the progress or outcome of an investigation within a reasonable period of time, having regard to the circumstances and the nature of the Eligible Disclosure.

At the end of the investigation, a report will be completed and provided to the Board outlining the process that has been undertaken, the determined outcome and recommendations for remediation or other action where required.

4.6 Protection of Whistleblowers

Where a Whistleblower qualifies for protection for disclosure of Reportable Conduct in accordance with this policy, the Corporations Act affords the Whistleblower the following legal protections:

1. a) Identity protection

The Whistleblower’s identity and information likely to lead to the identification of the Whistleblower will be kept confidential. The Whistleblower may or may not wish to remain anonymous when making the report. There is no requirement for a Whistleblower to identify themselves in order for an Eligible Disclosure to qualify for protection under this policy or the Corporations Act.

The Whistleblower’s identity may only be disclosed:

• if the Whistleblower consents;
• to report a matter to ASIC, APRA, or a member of the Australian Federal Police (as appropriate);
• to a legal practitioner for the purpose of obtaining legal advice or legal representation about the whistleblowing provisions of the Corporations Act; or
• as otherwise required by law.

The unauthorised disclosure of the Whistlerblower’s identity, or information which may identify the Whistleblower, may in some circumstances be a criminal and civil offence under the Corporations Act.

1. b) Protection from detriment

The Whistleblower will be treated fairly and no differently for having made an Eligible Disclosure.

A person must not cause, or threaten to cause, detriment to a person because they have made, may make, proposes to make, or could make, an Eligible Disclosure.

Examples of detrimental conduct include dismissal, injury, alteration of an employee’s position to their disadvantage, discrimination, harassment, physical or psychological harm or injury, property damage, reputational damage, and business or financial damage.

A person who engages in behaviour causing detriment to the Whistleblower may be subject to criminal and civil liability under the Corporations Act.

1. c) Civil, criminal and administrative liability protection

The Whistleblower will not be subject to any of the following for making an Eligible Disclosure:

• any disciplinary, civil or criminal liability; or
• any contractual or other remedy.

In addition, if the disclosure qualifies for protection, the information disclosed by the Whistleblower will not be admissible in evidence against the Whistleblower in criminal proceeds or proceedings for the imposition of a penalty, other than proceedings which relate to the provision of false information.

1. d) Other remedies available under Australian law

In addition to the protections outlined above, the Whistleblower may also have the following protections available to them:

• compensation for loss, damage or injury suffered as a result of detrimental conduct arising from making a disclosure or where the Organisation failed to take precautions, or exercise due diligence to avoid the detrimental conduct;
• an injunction to prevent, stop or remedy the effects of the detrimental conduct;
• an order requiring an apology for engaging in the detrimental conduct;
• reinstatement if the detrimental conduct consists, or consisted, of termination of an employee’s position; or
• any other order the court thinks appropriate.

The Whistleblower is encouraged to seek independent legal advice in relation to these remedies.

4.7 Amendment of this Policy

This Policy may be amended only with the approval of the ELACCA Board to ensure that it complies with legislative changes and that it meets current best practice standards.

This Policy will be reviewed by the Board on an annual basis to ensure that it is effective and meets the needs of stakeholders.