Whistleblower policies: Why they’re suddenly so complicated

The Aged Care Act 2024 (Cth) introduced the associated provider regime, a reform that has dominated compliance conversations this year. But one area that remains underexplored (and yet very complex!) is the intersection between associated providers, “aged care workers” and whistleblower obligations.

Why so complicated?

When the Act expanded the definition of “aged care workers” to include contractors and sole traders engaged through associated providers, it triggered a ripple effect. Whistleblower protections, traditionally focused on employees, now need to extend to a much broader group.

Providers must grapple with three overlapping, yet different, legal frameworks:

• Aged Care Act 2024 (Cth) – extending to aged care workers and associated providers;
• Corporations Act 2001 (Cth) – corporate whistleblower protections (also applicable to providers who are incorporated under legislation other than the Corporations Act, for example, incorporated associations); and
• Public Interest Disclosure Act 2013 (Cth) – federal protections for certain disclosures.

Each regime has different triggers, protections, and reporting requirements. A single, generic whistleblower policy is no longer fit for purpose.

Governance vs practicality

Boards and executives face a dual challenge:

• Governance assurance: verifying that disclosures are handled confidentially, fairly, compliantly and are acted upon; and
• Practical implementation: managing confidentiality and retaliation risks when the whistleblower is a contractor (or contractors’ employee) and ensuring associated providers understand their obligations.

Employment law implications add another layer of complexity.

Strategic response

One option is to move away from “one-size-fits-all” and adopt a tiered whistleblower framework:

• Workforce & Business Partners Whistleblower Policy covers:
  • past and present (and family members of):
    • aged care workers (employees and non-employees);
    • associated providers;
    • other contractors /vendors (etc).
  • corporate obligations under the:
    • Aged Care Act;
    • Corporations Act; and
    • Public Interest Disclosure Act.
• Clients, Family & Supporters Whistleblower Policy: A simpler document focused on care recipients and their networks.

This approach balances compliance whilst still offering a very straightforward whistleblower policy to clients and their families.

Key takeaways

From a governance perspective (and bearing in mind their new statutory duties), providers should:

• cover off on whistleblower obligations in subcontracts (ie. disclosure, protections, cooperation in investigations);
• implement mandatory training on their whistleblower framework for all aged care workers (employees and non-employees), associated providers and contractors providing aged care workers; and
• track and audit compliance with the framework to ensure it is effective.

Why this matters

Both the associated provider regime and the whistleblower requirements are also an opportunity for providers to responding to the increased expectations relating to clinical governance under the new Aged Care Act.   In doing so, they both strengthen culture, transparency and trust and, in turn, the quality of care provided. 

For a confidential conversation about the how your whistleblower policy can be improved or to access a range of template documents developed by Lavan specifically for aged care providers under the new Aged Care Act, contact Amber Crosthwaite on 0400 143 677 or amber.crosthwaite@lavan.com.au

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.