Whistleblower Policy
Introduction
The objective of this policy is to set out how Westbourne Credit Management Limited, ACN 131 843 144 (Westbourne) as an Australian regulated entity complies with Part 9.4AAA of the Corporations Act 2001 (Cth), as amended by the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (and Westbourne Credit Management (UK) Limited, Company Numer 11302524 complies with the United Kingdom Public Interest Disclosures Act 1998 and the Criminal Finances Act 2017 and where applicable guidelines from the Financial Conduct Authority and the Prudential Regulation Authority (collectively called the Whistleblower Provisions). There are some differences between the Australian and UK legislation and where relevant, we have set those out in this policy.
Scope
This policy applies to Westbourne and its related bodies corporate (Westbourne, we, our, us, the company). It covers Westbourne in its capacity as employer, Australian Financial Services Licence (AFSL) holder, trustee, investment manager and investment adviser to funds, limited partnerships and individual mandate clients.
This policy applies to Westbourne’s directors, employees, contractors, workers and consultants (Employees) whether past or present. In the UK, the policy does not apply to volunteers and people who are genuinely self-employed.
This policy should be read in conjunction with Westbourne’s Code of Conduct, Workplace Anti-Bullying Policy, Discrimination and Harassment Policy, Recruitment procedures, AML/CTF Risk and Identification program and Anti-Bribery and Corruption Policy.
Intent
Westbourne is committed to ensuring it complies with the law.
- The Whistleblower Provisions set out the protections granted to a person (whistleblower) making a disclosure about a regulated entity to a regulator or to an eligible recipient.
- As a regulated entity we are required to set out our obligations in a Whistleblower Policy which complies with the requirements of the Whistleblower Provisions.
- We make this policy available to all current and former Employees on the Company website or online compliance manual. The policy is provided to all Employees upon commencement of their employment with Westbourne as part of the induction process.
- This policy is designed to deter wrongdoing, improve Westbourne’s culture and increase the degree of transparency in relation to disclosures of wrongdoing in the workplace.
- This policy sets out the following information:
- the protections that we have in place for whistleblowers, including the protections under the Whistleblower Provisions;
- how and to whom a person can make a disclosure;
- how we support whistleblowers and protect whistleblowers;
- how we investigate disclosures;
- how we ensure the fair treatment of Employees mentioned in disclosures; and
- how the policy is made available to Employees.
Protections for whistleblowers
Westbourne has implemented the following protections for whistleblowers or tax whistleblowers:
Anonymous disclosure – whistleblower and tax whistleblowers
- A whistleblower or tax whistleblower is not required to provide their name when making a disclosure. Accordingly, Westbourne ensures that it keeps the following information confidential:
- the whistleblower’s or tax whistleblower’s identity;
- any information that is likely to lead to the identification of the whistleblower or tax whistleblower; and
- any information obtained directly or indirectly as a result of the disclosure, which reveals the whistleblower’s or tax whistleblower’s identity,
except where:
- the whistleblower or tax whistleblower has consented to the disclosure of their identity;
- the disclosure is reasonably necessary for the purposes of investigating the conduct disclosed by the whistleblower or tax whistleblower, and all reasonable steps are taken to reduce the risk of the whistleblower or tax whistleblower being identified;
- the identity information is required to be disclosed to a regulator, or to the Australian Federal Police, Australian Taxation Office, or to other Commonwealth, State or Territory authorities with functions or duties relevant to the disclosure;
- the identity information is disclosed to a legal practitioner for the purpose of obtaining legal advice or representation in relation to the disclosure; or
- where the regulations provide that disclosure of the whistleblower’s or tax whistleblower’s identity is permitted. A person (including Westbourne) is not required to disclose the identity of a whistleblower or tax whistleblower, or information that is likely to lead to the identification of a whistleblower or tax whistleblower, to a court or tribunal unless it is necessary for the purpose of giving effect to the Whistleblowing Provisions, or if the court or tribunal orders.
Immunities for whistleblowers and tax whistleblowers
Whistleblowers and tax whistleblowers who have reasonable grounds for making a disclosure are protected from civil, criminal and administrative liability, and from the imposition of a penalty. This means that disclosures made by a whistleblower are not admissible as evidence against the whistleblower or the tax whistleblower in legal proceedings unless the proceedings against the whistleblower relate to whether the disclosure is false.
Tax whistleblowers are also protected from contractual or other remedies which arise on the basis of the tax disclosure. This means that where the tax whistleblower is a party to a contract (including an employment contract), that contract cannot be terminated on the basis that the tax disclosure constitutes a breach of the contract.
A tax whistleblower is not liable for an action for defamation which arises as a result of the tax disclosure, except in certain limited situations (eg malice).
Protection from victimisation for whistleblowers and tax whistleblowers
Westbourne undertakes a comprehensive investment due diligence process ahead of completing any investment. In relation to ESG considerations, this includes the investment team reviewing company reporting, available third-party ESG related due diligence reports, relevant industry data and reports, and engagement with the borrower and/or advisors. Westbourne undertakes to encourage borrowers to complete industry standard ESG templates as part of due diligence processes (included in Appendix I) noting such templates continue to evolve.
Whistleblowers and tax whistleblowers are protected from victimisation. It is an offence for Westbourne or any other person engaged by or affiliated with Westbourne to engage in detrimental conduct that causes, or threatens to cause, any detriment to another person, even where:
- a disclosure has not occurred;
- the victimiser has no actual knowledge that the disclosure or tax disclosure has occurred; or
- the victimiser does not intend that the conduct will cause detriment.
This protection extends to persons involved in receiving or investigating the disclosure or tax disclosure, or a colleague, supporter, friend or family member of the whistleblower or the tax whistleblower.
Under UK law, the circumstances in which protection is afforded to a whistleblower who has made a disclosure is limited to detriment by an act or a deliberate failure to act performed on the ground that a person has made a protected disclosure.
A person can seek compensation from Westbourne for any loss, damage or injury suffered as a result of the detrimental conduct. Compensation can, in some situations, include reinstatement of employment.
Westbourne has procedures in place to take reasonable steps to prevent a person, including its Employees, from engaging in detrimental conduct. Refer to the Code of Conduct, Workplace Anti-Bullying Policy and Discrimination and Harassment Policy.
Making a disclosure
Eligible recipient
People that will qualify as an eligible recipient are set out in the Appendix. In summary, a whistleblower can make a disclosure to an eligible recipient, which includes Westbourne managers and directors, the Westbourne Whistleblower Officer, a legal practitioner (for the purpose of obtaining legal advice or representation). An emergency disclosure or public interest disclosure (as defined in the Appendix) may be made to a journalist or a parliamentarian. The Westbourne Whistleblower Officer is the Chief Operating Officer (COO).
A tax whistleblower can make a tax disclosure to a tax recipient, which includes the above recipients, as well as the Commissioner.
Under UK law, a whistleblower is also able to make a disclosures about the conduct of persons other than those working for Westbourne. Where this occurs, the disclosure is to be treated as if the disclosure had been made to Westbourne.
How to make a disclosure
As a first step, we encourage employees to report (in writing or verbally) a disclosure or a tax disclosure to the Whistleblower Officer, refer to the contacts section below.
If the disclosure is in relation to the Whistleblower Officer the report can be made to the other contacts.
The Whistleblower Officer may escalate to the Managing Director or the Board for the purpose of investigating the disclosure and determining what action can be taken to reduce the risk of identifying the whistleblower.
Contacts
Whistleblower Officer - Melbourne Office |
Lynne Beale |
Managing Director - Melbourne Office |
David Ridley |
Any director or officer of Westbourne |
Contact details can be obtained from the Senior Administrator |
UK Director - London Office |
Tim Floyd |
Regulators: |
www.asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/ |
In the United Kingdom: |
Helpline: (020) 3117 2520 |
Protection and support for whistleblowers
Westbourne has in place policies and procedures which ensure that:
- as part of the disclosure and investigation process, we maintain the confidentiality of the whistleblower’s and the tax whistleblower’s identity, and do not disclose this information except as allowed under the Whistleblowing Provisions;
- if the whistleblower or tax whistleblower is an employee or one of our clients, we will not terminate our contract or arrangement with them purely because they have made a disclosure or a tax disclosure;
- we take reasonable steps to ensure that whistleblowers and tax whistleblowers are not the subject of detrimental conduct. Refer to the Discrimination and Harassment Policy and Anti-Bribery and Corruption Policy; and
- we will not take action against a whistleblower or a tax whistleblower on the basis of breach of employment contract, where the breach of the employment contract relates to the disclosure.
Investigation of disclosures
Westbourne is committed to ensuring that it proceeds deliberately and quickly in investigating disclosures and tax disclosures. Generally, disclosures reported are investigated internally. Where the disclosure or tax disclosure is large in scope, or may involve regulators and/or external third parties, we will consider whether to retain external advice or counsel in order to conduct the investigation. Any issues raised will be treated in total confidence and will be handled in a professional and discreet manner.
The investigation will be fair, transparent, independent, objective and afford natural justice to all involved. A matter will not be investigated by a person who is implicated in a report made. In addition, information in relation to the investigation will only be disseminated to Employees who need to know, in order to investigate the matter.
The investigation process is flexible and may vary according to the circumstances. Where possible, information will be obtained from independent sources, such as records, so that the matter is investigated confidentially and with minimal impact on the person raising the matter. In some circumstances, it may be necessary to speak to other Employees directly involved in the issue. So that disclosures are dealt with fairly, persons referred to in a report will be given the opportunity to state their case.
Where an investigation shows that wrongdoing has occurred, we are committed to changing processes and taking action in relation to Employees who have behaved incorrectly, including dismissal for gross misconduct.
Fair treatment of employees mentioned in a disclosure or a tax disclosure
Westbourne takes all reasonable steps to ensure that all Employees are protected from detrimental conduct. This obligation includes protecting persons named in a disclosure or a tax disclosure from detrimental conduct.
Westbourne has in place detailed policies and procedures which deal with our anti-bullying and anti-discrimination obligations. All employees and officers are required to read our policies and procedures upon commencing their employment or engagement with Westbourne, and must review those polices annually.
Policy breaches
It is a breach of this policy to cause another Employee to suffer a personal disadvantage because the person has raised a concern. It is also a breach of this policy to raise a concern which you know is not true.
Breaches of this policy will be taken very seriously. A breach of this policy may result in disciplinary action and could involve dismissal if the breach is serious.
It is each person’s responsibility to understand how this policy applies to you as a director, employee, contractor, worker or consultant. If you are uncertain about whether this policy applies, or you have any questions about the policy, please speak with the Whistleblower Officer.
Monitoring, reporting and review
The Board is responsible for overseeing our policies. The COO has a direct reporting line to the Board for all compliance and governance matters.
To ensure this policy remains current and effective, it will be reviewed regularly. The review is performed by the COO and presented to the Board for review and approval where there are material changes to the policy.
Further information
If you have any questions in relation to this policy, please speak to the COO.
Version history
Updated November 2023.
Appendices
Appendices have been redacted from the public version of the policy.