Whistleblower Policy

Group Policy Whistleblower Policy
Date Issued: December 2019
Authorised by: Malcolm Bundey, Chief Executive Officer

1 Introduction

Marlin Brands Pty Ltd (Company) strives to ensure that it, and the other members of the Marlin Brands Corporate Group, are operating their businesses lawfully and with integrity.

This policy explains the protections afforded to eligible whistleblowers under Part 9.4AAA of the Australian Corporations Act 2001 (Cth) (the Act).

The Act provides certain protections for “Eligible Whistleblowers” in certain circumstances, and Marlin Brands is committed to recognising and upholding those protections. Where a person who is an Eligible Whistleblower, makes an Eligible Disclosure, to an Eligible Recipient, then the person making the disclosure has particular rights and protections under legislation.

The purpose of this policy is to ensure that individuals who make a protected disclosure can do so with confidence that they will be protected from victimisation or discrimination because they made a protected disclosure.

Effect of this policy

To the extent that officers and employees of Marlin Brands or its related bodies corporate have obligations under this policy, they are required to comply with the policy.

The terms of this policy are not intended to impose contractual obligations on Marlin Brands or on any related body corporate.

Further, the terms of this policy are not incorporated into any individual employee’s contract of employment, nor any contractor’s contract for services.  This policy may be amended, replaced or rescinded by Marlin Brands from time to time, and in its absolute discretion.

2 Policy Scope

This policy covers all employees, prospective employees, contractors, consultant, agents, visitors to Marlin Brands and its group of Companies. To avoid uncertainty, this policy applies and replaces any previous version for the following employing entities:

Marlin Brands Pty Ltd,

Marlin Management Services Pty Ltd,

Marlin Management Services 2 Pty Ltd t/a Zanui

Décor Corporation Pty Ltd,

Pacific Optics Pty Ltd,

Susskind& Danziger Pty Ld  t/a Albi Imports, &

Independence Studios Pty Ltd

3 Who is an Eligible Whisteblower?

An “Eligible Whistleblower” who may make a protected disclosure under this policy is a person who is, or has been:

  • an officer of Marlin Brands or one of its related bodies corporate,
  • an employee of Marlin Brands or one of its related bodies corporate,
  • a supplier of goods or services to Marlin Brands or one of its related bodies corporate (or employee of such a supplier),
  • an “associate” of Marlin Brands (for the definition of “associate”, see the Corporation Act 2001), or
  • a relative, dependent, or dependent of a spouse, of any individual listed above.

4 What is an “Eligible Disclosure”

The disclosures protected by the Act (“Eligible Disclosures”) include disclosures where a person has reasonable grounds to suspect that the information disclosed concerns:

(a) misconduct or an “improper state of affairs or circumstances” regarding Marlin Brands or any of its related bodies corporate;

(b) Marlin Brands or any related body corporate (or any officer or employee of those entities) has engaged in conduct that:

(i) is an offence against, or contravention of, the Act, the ASIC Act, or a range of specified banking, insurance, life insurance and superannuation statutes;

(ii) is conduct that relates to an offence against any law of the Commonwealth which is punishable by imprisonment for 12 months or more; or

(iii) represents a danger to the public or the financial system.

A disclosure, made where the employee had reasonable grounds to suspect the information indicated a relevant form of misconduct had occurred, may still qualify for protection even if the disclosure turns out to be incorrect.

A disclosure can be made anonymously and still qualify for protection under the Act and this policy. However, it may be difficult for Marlin Brands to seek further information from a whistleblower where the disclosure is made anonymously and there is no way for Marlin Brands to contact the whistleblower.

A whistleblower may have a right to make a public interest disclosure and an emergency disclosure (which relates to disclosures to a member of parliament and to journalists), pursuant to s.1317AAD of the Act. However, there are significant restrictions on availability of protection for disclosures to third-parties, and of an unprotected disclosure of confidential information is made, ordinary disciplinary processes for breach of employment obligations may occur.

A person may also have a right to make a protected disclosure in relation to misconduct concerning the tax affairs of Marlin Brands or its related bodies corporate, as set out in the Taxation Administration Act.

Personal work-related grievances

A disclosure about only a “personal work-related grievance” will generally not qualify for protection under the Act or this policy. For the purposes of this policy, a “personal work-related grievance” is a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally, will not qualify for protection. This includes disclosures about:

  • interpersonal conflict between a discloser and another employee;
  • decisions relating to promotions, transfers, demotions, terms and conditions of employment; and
  • decisions about taking disciplinary action against a discloser (including decisions about suspension and termination of employment).

However, a disclosure will not be a “personal work-related grievance”, where the disclosure:

  • has significant implications for Marlin Brands (or another regulated entity) that do not relate to the discloser; or
  • is otherwise an offence against federal law, or represents a danger to the public or financial system.

A disclosure about only a “personal work-related grievance” may not be covered by the scope of the whistleblower protections in this policy and under the Act. The exception to this is that it will be a “protected disclosure” for an individual to disclose information to a legal practitioner for the purposes of obtaining legal advice about the operation of, or protections available under, Part 9.4AAA of the Act.

Employees can raise “personal work-related grievances” for management in accordance with the Marlin Brands Group Workplace Bullying, Harassment and Equal Opportunity Policy, or Conflict and Grievance Resolution Policy.

5 Who is an “Eligible Recipient” of a disclosure that qualifies for protection under the Act?

In order to qualify for protection, protected disclosures must be made to one or more of the following “Eligible Recipients”:

  • The Marlin Brands Whistleblower Protection Officer (Group Chief Financial Officer)
  • an officer of Marlin Brands or a related body corporate in the Marlin Brands corporate group. That means:
    • a director, or Company Secretary; or
    • a senior manager of Marlin Brands or a related body corporate (being a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the body corporate, or who has the capacity to affect significantly the body corporate’s financial standing). For example, the Chief Executive Officer or Chief Financial Officer.
  • the Australian Securities and Investments Commission (ASIC).
  • the Australian Prudential Regulation Authority (APRA).
  • the external auditor (or a member of that audit team) of Marlin Brands or a related body corporate.
  • an actuary of Marlin Brands or a related body corporate.

Where a disclosure is made to someone who is not an “Eligible Recipient”, it may not qualify for protection under this policy.

6 How to Make a Disclosure?

When making a disclosure under this policy, Marlin Brands requests that a person includes, in writing:

  • a description of the conduct which identifies why the conduct is within the conduct that can be an Eligible Disclosure, in relation to the corporate entity the disclosure is about;
  • for a disclosure about misconduct or an improper state of affairs of the relevant corporate entity, a description of the reasonable grounds for the suspicion that the conduct is an Eligible Disclosure; and
  • anything else you wish to add that would assist Marlin Brands or the subsidiary entity to make an assessment of the conduct or to otherwise investigate it.

The form linked to this policy can be used to report a disclosure and sets out questions that will assist Marlin Brands to be able to assess and manage an Eligible Disclosure.  A disclosure should made via that electronic form and will result in the disclosure being [securely] transmitted to the Group Chief Financial Officer who is authorised to receive those disclosures or another person authorised as set out in Section 5 of this policy.

7 Protection for Whistleblowers

An Eligible Disclosure which qualifies for protection under the Act, qualifies for protection from the time the disclosure is made, regardless of whether the discloser or recipient recognises that the disclosure qualifies for protection. Where an Eligible Disclosure which qualifies for protection under this Policy and/or the Act, Marlin Brands will endeavour to support the Eligible Whistleblower and protect them from detriment in the following ways:

  1. Protection from detrimental conduct

If an Eligible Whistleblower makes a disclosure that qualifies for protection, it is prohibited under law, for another person to subject the discloser (or threaten to subject the discloser) to detrimental treatment because the person made a disclosure (or believes or suspects a person made, may have made, proposes to make, or could make, a qualifying disclosure).  Detrimental conduct includes (but is not limited to):

  • termination of employment;
  • disciplinary action;
  • demotion;
  • performance management;
  • bullying or harassment; or
  • discrimination against the discloser because they made a protected disclosure in accordance with his policy and/or the Act.

For the avoidance of doubt, protecting a discloser from detriment does not prevent Marlin Brands from managing a discloser’s unsatisfactory performance, their own misconduct, or from taking action to protect a discloser from detriment (for example, when the disclosure relates to wrongdoing in the discloser’s immediate work area).

If an Eligible Whistleblower has a reasonable suspicion that he or she has been subjected to detrimental conduct as described above, the Eligible Whistleblower can report that under this policy. Marlin Brands may investigate such complaints and take such action as it determines is appropriate in the circumstances. Eligible Whistleblowers may seek independent legal advice or contact regulatory bodies, such as ASIC or APRA, if they believe they have suffered detriment.

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

  • they suffer loss, damage or injury because of a disclosure; and
  • the entity failed to prevent a person from causing the detriment.

Depending upon the relevant circumstances, if an employee or contractor breaches this policy, appropriate action (potentially including disciplinary action, or termination of a contractor’s engagement) will may be taken. Such action may be separate from any penalties or damages that may be imposed upon a person by a court owing to the person having breached relevant legislation.

  1. Protection of the identity of the whistleblower

Except in the circumstances described below, where an Eligible Disclosure is made that qualifies for protection under the Act, the eligible recipient will not disclose the identity of the discloser, or any information that is likely to lead to the identification of the discloser, unless:

  • the discloser consents;
  • it is disclosed to ASIC, APRA, or a member of the Australian Federal Police;
  • it is disclosed to a legal practitioner to obtain legal advice or legal representation in relation to the operation of the whistleblowing provisions; and/or
  • it results in information being disclosed where it is reasonably necessary to do so for the purposes investigating a matter to which the qualifying disclosure relates (in which case Marlin Brands and the recipient will ensure the disclosure does not identify the whistleblower and will take all reasonable steps to reduce the risk the discloser will be identified).
  1. Further protections

The protections given by the Act, when an Eligible Disclosure qualifying for protection under the Act is made, are:

  • the whistleblower is immune from any civil, criminal or administrative liability (including disciplinary action) for making the disclosure;
  • no contractual or other remedies may be enforced, and no contractual or other right may be exercised, against the whistleblower on the basis of the disclosure;
  • in some circumstances, the reported information is not admissible in evidence against the whistleblower in criminal proceedings or in proceedings for the imposition of a penalty, except where the proceedings are concerned with whether the information is false;
  • a whistleblower’s identity cannot be disclosed to a Court or tribunal except where considered necessary; and
  • unless the whistleblower has acted unreasonably or vexatiously, a whistleblower cannot be ordered to pay costs in any legal proceedings in which the whistleblower is seeking compensation for loss, damage or injury suffered as a result of the detrimental conduct.

The exemptions from liability for whistleblowers under this policy and the Act do not exempt a whistleblower from liability for their own misconduct or wrongdoing that may be included in the disclosure or discovered when the disclosure is investigated.

  1. Protection of files and records

To the extent that Marlin Brands con siders it necessary, Marlin Brands will create records and maintain documents in the course of any investigation of a disclosure under this policy. All protected disclosures and any files and records created from an investigation of a protected disclosure will be securely retained.

A release of information in breach of this policy will be regarded as a serious matter and may have consequences for employment (or for contractors, their contract for services).

  1. Additional support

Marlin Brands recognises that making a disclosure as a whistleblower can be stressful. If a person who makes a disclosure is an employee of Marlin Brands, they may request additional support.

Marlin Brands will look at ways to provide support to the extent reasonably practicable depending on all the circumstances of the case. Within the Marlin Brands corporate group, the confidential Employee Assistance Program is operated by LifeWorks, a global and independent organisation that provides confidential counselling to all employees and immediate family members at no cost to the employee. LifeWorks can be contacted by telephone at 1300 543 396.

8 Investigation of Disclosures

Upon receipt of an Eligible Disclosure, Marlin Brands may investigate such disclosures made by a person under this policy, and will approach the resolution of an issue on the basis of what is reasonably necessary to ensure appropriate responsible governance and corporate behaviour. Any findings of the investigation related to criminal activity may be reported to the police and/or relevant regulators.

An officer of Marlin Brands who is authorised and outlined in Part 5 of this Policy may be appointed to assist in the investigation of an Eligible Disclosure.

In endeavouring to ensure fair treatment of persons identified in a disclosure, the investigation will be conducted independently of any person who is the subject of the disclosure. Where appropriate, such persons may be informed of the allegations and provided with the opportunity to respond.

The investigation process will be determined on a case-by-case basis with regard to the nature and substance of the disclosure. If the disclosure is not anonymous, contact with the whistleblower may be made shortly after receipt of the disclosure, and further information may be sought.

Where Marlin Brands considers it appropriate to do so, Marlin Brands will provide feedback to the whistleblower regarding the progress and/or outcome of the investigation. Where a report is submitted anonymously, Marlin Brands may conduct an investigation based on the information provided. If a disclosure is made anonymously and there is no way to contact the discloser, then this may limit the ability of Marlin Brands to effectively conduct an in-depth investigation.

9 Public Interest & Emergency Disclosures

In specific and limited circumstances, the Corporations Act provides whistleblower protections for people who make protected disclosures to journalists or members of a state or federal parliament. A “public interest disclosure” to a parliamentarian or journalist will be protected under the Corporations Act only if the following specific conditions are met:

· You previously made a disclosure to ASIC or APRA which met the requirements outlined above for a protected disclosure (see paragraphs above), and

· It has been at least 90 days that have passed since you reported the concern to ASIC or APRA, and you do not have reasonable grounds to believe that action to address your concerns is being taken or has been taken, and

· You have reasonable grounds to believe that reporting your concerns to a journalist or parliamentarian would be in the public interest, and

· After 90 days from when you first reported the concern to ASIC/APRA, you write to that same agency to which you made the disclosure. In this written correspondence, you identify your earlier report, and state that you intend to make a “public interest” disclosure, and

· You report the information to a journalist or a member of parliament.

An “emergency disclosure” will receive protection under the Corporations Act only if the following specific requirements are satisfied:

· You already made a report to ASIC/APRA that qualified for protection under the Corporations Act (by meeting the requirements outlined above),

· You have reasonable grounds to believe that the information in the report concerns substantial and imminent danger to the health and safety of one or more people or the natural environment,

· You write to the agency to which you made the protected disclosure, identify your earlier report to them, and state that you intend to make an “emergency disclosure”, and

· You report the information to a journalist or parliamentarian.

10 Implementation and review

The Group Chief Financial Officer will be responsible for managing and having oversight of the implementation of this policy. In 2020, the Chief Executive Officer will provide a summary report to the Board, regarding the operation of the policy in practice.

11 Availability of this policy

This policy will be published on accessible intranet or shared portals of Marlin Brands and each related company of Marlin Brands Pty Ltd.  During induction to the company, new employees will be advised of this policy’s existence and location.