The new Protected Disclosures Amendment Act 2022 imposes new obligations and requirements on employers with effect from 1 January 2023, as follows:
- The scope of the Protected Disclosures Act 2014 has been widened to include not only public bodies but also private sector organisations as well as not-for-profit entities, and as certain sector specific entities irrespective of size (see Who is in scope)
- The definition of ‘worker’ – a person who can make a protected disclosure – has been expanded to include employees, contractors, volunteers, unpaid trainees, shareholders, board members, suppliers and job applicants
How will this affect the employers brought into scope?
- Employers who are now within the scope of the Act are required to have a Protected Disclosures policy in place and to establish an internal whistleblowing channel and procedures through which the ‘workers’ can file protected disclosures
- However a ‘worker’ can also file a Protected Disclosure to a Prescribed Person (see Who is a Prescribed Person) either in addition to filing an internal report or instead of doing so.
What is it is an anonymous disclosure?
- An employer is not obliged to investigate an anonymous disclosure
- However should an anonymous whistleblower later decide to identify him or herself, they are afforded protection under the Act.
The types of wrongdoing are expanded
- The types of wrongdoings that the Amendment Act now recognises has also been expanded (see What constitutes wrongdoing)
The definition of worker has expanded
- The definition of ‘worker’ has been extended to include the following categories of persons who may wish to file a Protected Disclosure:
- Unpaid trainees
- Board members
- Job applicants
Timelines have changed
- The reporting time lines have also changed such that an acknowledgment of a Protected Disclosure must be issued to the whistleblower within 7 days of receipt
- Feedback on what actions have been taken or what investigations have been carried out must be provided to the whistleblower within 3 months
The types of offences have changed
- Identifying a whistleblower, if not authorised to do so, is now a criminal offence (see What Constitutes an Offence)
- It is also an offence for employers who fail to put in place the required policies and internal whistleblowing channels (see What Constitutes an Offence)
- It is also an offence to penalise a whistleblower, hinder their ability to report a disclosure or take proceedings against them for doing so (see What Constitutes an Offence)
What constitutes Penalisation has been extended
- The penalisation of whistleblowers has also been extended to include negative performance assessments, refusal to provide references and/or medical referrals, in addition to any act or omission that may hinder the worker
New Office of the Protected Disclosures Commissioner
- A new Office of the Protected Disclosures Commissioner has been established and Ger Deering, the former Financial Services and Pensions Ombudsman, has been appointed as the first Protected Disclosures Commissioner
Inspections by the Workplace Relations Commission
- All whistleblowing channels will be monitored by the Inspectorate of the Workplace Relations Commission by way of a team of inspectors