Subject and Scope
The Australian Government has passed laws which provide protections to Whistleblowers. The Corporations Act 2001 (Cth) provides a consolidated whistleblower protection regime for Australia’s corporate sector pursuant to Pt 9.4AAA.
The regime requires public companies and large proprietary companies to have a whistleblower policy and make the policy available internally and externally. This policy provides guidance applicable to BMW Australia Ltd, BMW Sydney Pty Limited and BMW Australia Finance Limited (BMW) regarding how these entities will receive and address a Whistleblower’s claims.
This policy applies to any Whistleblower as defined in section 1 below.
A person employed by a third-party currently on location at BMW.
• Whistleblowing Champion;
• An Auditor of BMW (including internal and external auditors);
• Senior Manager of BMW;
• a Whistleblower’s legal practitioner for the purposes of obtaining legal advice or representation in relation to a Reportable Matter;
• ASIC, APRA or another Commonwealth body as prescribed by whistleblower legislation; or
• any other person delegated in writing by the Whistleblowing Champion to receive disclosures.
A person who is or has been employed by BMW on a permanent, part-time, fixed-term or temporary basis, including interns, secondees, man-agers and directors.
An issue or conduct of BMW or an Employee that the Whistleblower has reasonable grounds to suspect is misconduct or an improper state of affairs or circumstances.
Misconduct includes: fraud, negligence, default, breach of trust and breach of duty.
An improper state of affairs or circumstances 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.
By law a Reportable Matter also includes conduct which is:
- a danger to the public or the financial system;
- a breach of the law that is punishable by imprisonment 12 months or more;
- prescribed by regulation in relation to Whistleblower protection; or
- a breach of the following legislation (or a related legislative in-strument):
- the Corporations Act 2001;
- 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; or
- the Superannuation Industry (Supervision) Act 1993.
Senior Manager of BMW
For BMW Australia Ltd: CEO, CFO & General Managers
For BMW Sydney Pty Limited: Dealer Principal and General Managers
For BMW Australia Finance Limited: CEO, CFO & General Managers
A Whistleblower can be an individual who currently or has formerly held any of the following roles with BMW:
- dealership (including their Employees);
- supplier of goods or services (including their Employees);
- contractor or consultant (including their Employees);
- spouse, de facto, relative or dependant of any of the above; or
- dependant of a spouse or de facto of any of the above.
Note: This policy applies to current Employees of BMW only. Details regarding the disclosures by Whistleblowers other than current Employ-ees can be found on the external BMW websites.
BMW entities each have appointed Whistleblowing Champions who are responsible for ensuring and assessing the integrity, independence and effectiveness of this policy and investigating disclosures made under it.
Unless otherwise nominated the relevant Whistleblowing Champions are:
BMW Australia Ltd - Group Compliance Officer Whistleblowing@bmw.com.au
BMW Sydney Pty Limited - Group Compliance Officer Whistleblowing@bmw.com.au
BMW Australia Finance Limited- Head of Compliance firstname.lastname@example.org
2 DISCLOSURE PROCESS.
The below summarises the Whistleblower disclosure process to the Whistleblowing Champion:
Section of policy
Making a disclosure
Whistleblower to contact the Whistleblowing Champion (rec-ommended at first instance) or other Eligible Recipient to raise a concern they have about a Reportable Matter.
Whistleblowing Champion to conduct a Preliminary Review to determine whether the matter falls within this Policy and if an investigation is required.
Whistleblowing Champion to initiate an investigation to estab-lish the facts, including interview of relevant individuals, gathering of records etc.
Appropriate action to be taken, which may involve a further investigation and remediation of the misconduct, disciplinary action or reporting the matter to an external body.
The individual steps and outcome of the investigation will be documented in an appropriate manner and retained confiden-tially.
In certain circumstances the Whistleblower may escalate con-cerns regarding the process or outcome to other parties.
2.1 Making a Disclosure.
A Whistleblower is entitled to protection under law with regards to any Reportable Matter raised under this policy where there are reasonable grounds to suspect that misconduct or an improper state of affairs or circumstances has occurred. However this policy does not apply to a mere personal grievance (e.g. interpersonal conflicts between Employees or annoyance at a promotion decision etc.) if it does not also meet the reasonable ground requirement above. Whistleblowers should therefore not raise false or misleading claims that are not based in truth or that relate only to interpersonal matters.
Where a reasonable ground for the claim exists any other motivations of the Whistleblower will not be taken into account when investigating the matter.
Who can a Disclosure be made to?
It is recommended that a disclosure be made to the Whistleblowing Champion, however a disclosure can also be made to any Eligible Recipient.
This policy does not restrict Whistleblowers from communicating or disclosing a Reportable Matter to a government agency, law enforcement body or a regulator in accordance with legislation.
2.2 Preliminary review.
As a part of the Preliminary Review, where the Reportable Matter has been referred to the Whistleblowing Champion, they will assess each disclosure to determine whether:
- the matter falls within this policy; and
- an investigation is required.
Where a disclosure is made to any Eligible Recipient internal to BMW other than the Whistleblowing Champion the matter will be referred to the relevant Whistleblowing Champion for preliminary review of the allegations raised in the disclosure.
Where the Whistleblowing Champion is the subject of, or potentially involved in, the subject matter of a disclosure, a Whistleblower is recommended to disclose to another Eligible Recipient. Additionally, where a perceived or actual conflict of interest of the Whistleblowing Champion is identified during the preliminary review or investigation, the disclosure will be referred to another Eligible Recipient who is independent and can conduct an objective and fair investigation within a reasonable timeframe.
Where determined in the preliminary review that an investigation is required, an investigation will be conducted in a thorough, objective, fair and independent manner. The Whistleblowing Champion has discretion to delegate the investigation to an independent external investigator – e.g. external legal counsel, where relevant expertise is required. The Whistleblowing Champion should ensure they undertake appropriate due diligence before engaging the independent third party investigator to ensure that obligations relating to confidentiality are maintained.
The identity of the Whistleblower (or information which may lead to their identification) will not be disclosed to the Whistleblowing Champion unless prior consent is obtained from the Whistleblower. It is noted that the Whistleblower may remain anonymous as per section 3.1 below.
The Whistleblowing Champion must take steps to establish the facts of the case including by interviewing individuals potentially involved or with knowledge of the matters raised, gathering relevant records from available internal and external sources, and seeking further information or clarification from the Whistleblower where prior consent is obtained from the Whistleblower.
Please note, the investigation process may be impacted where the investigator is unable to contact an anonymous Whistleblower for additional information.
Employees interviewed in the course of an investigation will be given a reasonable opportunity to prepare for such an interview (including to obtain legal advice should they wish to do so). They will also be given the option of having another person, such as a legal representative, his or her manager or other support person present at the interview.
Evidence protection and treatment of persons concerned
BMW will ensure fair treatment of Employees mentioned in a disclosure in the course of any investigation. This includes handling any disclosures confidentially, when it is practical and appropriate in the circumstances and providing them with the opportunity to respond to claims made about them in the disclosure. Relevant electronic information (e. g. emails or files on hard drives) will be secured by the IT department prior to the commencement of any investigation in accordance with BMW processes relating data utilised in internal investigations.
If the information disclosed by a Whistleblower is determined to be well-founded, BMW will take appropriate action, which may involve (but is not limited to):
- a further investigation and remediation of the misconduct or improper state of affairs;
- disciplinary action (up to and including the termination of employment) against current employees found guilty of malpractice or wrongdoing; and/or
- reporting the matter to an appropriate independent or regulatory external body.
To the extent permitted, and if the Whistleblower can be contacted, the Whistleblower will be kept updated on the progress of the investigation at regular intervals. The Whistleblower and any current employee mentioned in the disclosure may be advised of the outcome of an investigation, to the extent permitted.
The individual steps and outcome of the investigation will be documented in an appropriate manner and retained confidentially and in accordance with applicable document management and retention policies. In particular, the information disclosed, records of interviews with witnesses and documents obtained in the course of the investigation will documented in secure BMW systems.
Where a Whistleblower is concerned that:
- they are or will be subject to detrimental conduct;
- their disclosure was not handled in accordance with this policy; or
- the assessment of their disclosure was not made in accordance with this policy,
A Whistleblower may escalate the concern directly to an Eligible Recipient who was not involved in the investigation. Based on the concerns raised and the information available, a review of the findings may be conducted by the person to whom it was escalated.
Prior to making an external escalation, BMW recommends that a Whistleblower exhausts all internal escalation options available and advises BMW of their intention to undertake an external escalation.
If a Whistleblower previously disclosed a Reportable Matter to ASIC, APRA or another Commonwealth body prescribed by whistleblower legislation and the disclosure fits into one of the categories below, a Whistleblower is entitled to receive protection under law with regards to the disclosure of the Reportable Matter to a journalist or member of parliament in respect of an Emergency Disclosure or a Public Interest Disclosure:
- Emergency Disclosure – requiring that:
- the information concerns a substantial and imminent danger to health and safety or the natural environment; and
- the Whistleblower has given the organisation to which it made the disclosure notice of their intention to make an emergency disclosure; and
- the extent of the disclosure is limited to the extent necessary to inform the recipient of the substantial and imminent danger.
- Public Interest Disclosure – requiring that:
- at least 90 days have passed since the disclosure; and
- the Whistleblower has no reasonable grounds to believe the matter is being addressed; and
- further disclosure of the information is in the public interest; and
- the extent of the disclosure is limited to the extent necessary to inform the recipient of the Reportable Matter.
3 PROTECTIONS PROVIDED TO WHISTLEBLOWERS.
BMW offers the following protections to a Whistleblower who discloses information regarding a Reportable Matter to an Eligible Recipient.
3.1 Anonymity and Confidentiality.
A Whistleblower may choose to identify themselves when making a disclosure or to remain anonymous. However to assist in the investigation of a disclosure Whistleblowers are encouraged to share their identity.
It is the responsibility of all Eligible Recipients to ensure that the identity of the Whistleblower is not disclosed except:
- where the Whistleblower provides consent;
- to a legal practitioner for the purposes of obtaining legal advice or representation in relation to the disclosure;
- where it is required by law; or
- to ASIC, APRA or the Australian Federal Police.
BMW may use the information obtained without a Whistleblower’s consent for the purposes of an investigation where the information does not include the Whistleblower’s identity. In such a scenario, all reasonable steps will be taken to reduce the risk that a Whistleblower will be identified, including securing and restricting access to documents and other materials related to the disclosure.
3.2 Protection for Whistleblowers from penalty.
BMW prohibits any actual or threatened personal
detriment against a Whistleblower for disclosing or proposing to disclose a Reportable Matter in accordance with this policy or applicable legislation. This includes but is not limited to:
- alteration of the Whistleblower’s position or duties to their disadvantage;
- harassment or intimidation; or
- enforcement of a contractual right or remedy (e.g.
under an employment contract).
Whistleblowers are also protected from the following in relation to their disclosure:
- civil liability – including legal action for breach of a contract;
- criminal liability – including prosecution for unlawfully releasing information; and
- administrative liability – including disciplinary action for making the disclosure.
These protections above do not grant immunity for any misconduct a Whistleblower has engaged in that is revealed due to their disclosure.
4 BREACH OF POLICY.
Any potential breach of this policy will be investigated in accordance with BMW policies on workplace conduct.
Disciplinary action may be taken where a current employee is found to have breached any of their obligations under this policy and/or relevant legislation - including in relation to confidentiality or threats of retaliation against a Whistleblower.