The Corporations Act 2001 Cth (Corporations Act) provides a consolidated whistleblower protection regime for Australia’s corporate sector. This Whistleblower Protection Policy (Policy) identifies:
- the process for making a protected disclosure under the Corporations Act;
- the protections available for individuals making a protected disclosure; and
- how a disclosure will be investigated.
BNY Mellon recognizes the importance of identifying wrongdoing and the importance of having a safe and secure means for individuals to disclose wrongdoing. BNY Mellon is committed to meeting its legal and regulatory obligations, upholding its values and Code of Conduct and ensuring that individuals who disclose wrongdoing can do so with the confidence that they will be protected and supported.
This Policy applies to the following entities:
The Bank of New York Mellon, Australia Branch (ARBN 84 084 066 419)
BNY Mellon Australia Pty Limited (ACN 113 947 309)
BNY Trust (Australia) Registry Limited (ACN 000 334 636)
BNY Trust Company of Australia Limited (ACN 050 294 052)
BTA Institutional Services Australia Limited (ACN 002 916 396)
GT Australia Nominees Limited (ACN 003 646 062)
Permanent Custodians Limited (ACN 001426384)
Pershing Securities Australia Pty Limited (ACN 136 184 962)
You can make a disclosure under this Policy if you are, or you have been any of the following in relation to the above entities (‘BNY Mellon’ or ‘We’).
a) A current or former officer or employee (e.g. permanent, part time, fixed-term, or temporary, interns, secondees, managers and directors);
b) a paid or unpaid supplier of services or goods to BNY Mellon including their employees (e.g. current and former contractors, consultants, service providers and business partners);
c) an associate of BNY Mellon; or
d) a relative, dependant or spouse of the individuals identified in (a) to (c) above
1. Matters this policy applies to
If you are an Eligible Whistleblower and you have a reasonable and genuine concern about:
(a) actual or suspected misconduct, or
(b) an improper state of affairs or circumstances,
in relation to BNY Mellon or a related body corporate, you can make a disclosure under this Policy. You do not need to have proof that wrongdoing has occurred, and you will not be penalized for information that turns out to be incorrect. It is important to note that the conduct being reported may not amount to a contravention of applicable law.
Examples of wrongdoing:
- Illegal conduct: for example theft, dealing in or use of illicit drugs, violence or threatened violence and criminal damage against property
- Fraud, money laundering or misappropriation of funds
- Bribes, including offering or accepting
- Financial irregularities
- Failure to comply with, or breach of, legal or regulatory requirements
- Unethical behavior or misconduct
- Engaging in or threatening to engage in detrimental conduct against a person who has made a disclosure or is believed or suspected to have made, or be planning to make, a disclosure
2. Excluded Matters
Personal work-related grievances
Generally, personal work-related grievances will not qualify for protection under this Policy save in certain limited circumstances. Personal work-related grievances are those that relate to your current or former employment and have personal implications for you personally, but do not (i) have any other significant implications for BNY Mellon or another entity, or (ii) relate to any actual or alleged conduct about a Disclosable Matter.
Examples of work-related grievances
- An interpersonal conflict between you and another employee
- A decision that does not involve a breach of workplace laws
- A decision about a transfer or promotion
- A decision about the terms and conditions of your engagement
- A decision to suspend or terminate your employment or other disciplinary action
Concerns about personal work-related grievances should be reported to your Manager in the first instance. In some limited circumstances, disclosures relating to personal work-related grievances may qualify for protection. For example, where:
a) It includes information about misconduct, or information about misconduct includes or is accompanies by a personal- work-related grievance (mixed report);
b) BNY Mellon has breached employment or other laws punishable by imprisonment of 12 months or more, engaged in conduct that represents a danger to the public, or the disclosure relates to information that suggests misconduct beyond the discloser’s personal circumstances;
c) You have suffered from or have been threatened with detriment for making a disclosure; or
d) You seek legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act.
3. Who can receive a disclosure?
To qualify for protection under this Policy, you must make your disclosure directly to an Eligible Recipient1.
The Ethics Office
You can make a disclosure through the Ethics Help Line, operated by members of the Ethics Office or the Ethics Hot Line, an independent hotline workflow administrator. Reports made to the Ethics Help Line and Ethics Hot Line are taken seriously and investigated fully. You can remain anonymous and your confidentiality will be protected to the fullest extent possible.
Australia Whistleblower Protection Officers
A Whistleblower Protection Officer is an individual with responsibilities for managing disclosures protected under this Policy. The following individuals are Whistleblower Protection Officers for BNY Mellon:
- The Chief Risk Officer Australia; and
- The Compliance Officer Australia.
Whistleblower Protection Officers can be contacted in person, by email and by post:
Level 2, 1 Bligh Street
Sydney NSW 2000
The following are Whistleblowing Protection Officers for Pershing Securities Australia:
- The Chief Risk Officer; and
- The Head of Compliance.
Whistleblower Protection Officers can be contacted in person, by email and by post
Pershing Securities Australia Pty Ltd
Level 2, 1 Bligh Street
Sydney NSW 2000
Other Eligible Recipients
There are other individuals who are eligible to receive disclosures and who are required to handle them in accordance with this Policy. This includes senior managers such as Directors, Accountable Persons under the Banking Executive Accountability Regime and internal or external auditors. Ultimately, any disclosures received by these recipients will be referred to the Whistleblower Protection Officers for assessment and investigation. As such, we would encourage you to report matters directly to a Whistleblower Protection Officer or the Ethics Office to allow for prompt investigation.
Regulatory Bodies and Legal Practitioners
You may also make a protected disclosure directly to the Australian Securities and Investments Commission (ASIC), Australia Prudential Regulation Authority (APRA) or another Commonwealth body prescribed by regulation and still qualify for protection under the Corporations Act, or to a legal practitioner for the purposes of obtaining legal advice or representation in relation to the operation of the whistleblower provisions in the Corporations Act.
Journalists and Parliamentarians - public interest and emergency disclosures
In certain circumstances, disclosures made to journalists or parliamentarians will also qualify for protection. These are referred to as “public interest disclosures” and “emergency disclosures” It is important to understand the criteria for making these types of disclosures and we recommend that independent legal advice be sought before they are made.
A ‘public interest disclosure’ is the disclosure of information to a journalist or parliamentarian, where:
a) At least 90 days have passed since the discloser made the disclosure to ASIC, APRA or another Commonwealth body prescribed by regulation;
b) The discloser does not have reasonable grounds to believe that action is being, or has been taking in relation to their disclosure;
c) The discloser has reason to believe that making a further disclosure of the information is in the public interest; and
d) Before making the public interest disclosure, the discloser has given written notice to the body to which the previous disclosure was made that (i) includes sufficient information to identify the previous disclosure and (ii) states that the discloser intends to make a public interest disclosure.
An ‘emergency disclosure’ is the disclosure of information to a journalist or parliamentarian where:
a) The discloser has previously made a disclosure to ASIC, APRA, or another Commonwealth body prescribed by regulation; and
b) The discloser has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment.
4. Anonymous disclosures
You may choose to remain anonymous while making a disclosure, during the investigation and after the investigation is finalized and may refuse to answer questions you feel would reveal your identity. While it is not a requirement to share your identity, it is encouraged to make it easier to address and investigate your concerns. In the event of an anonymous disclosure, we will take all reasonable steps to preserve your anonymity.
5. Legal Protections
Identity Protection (Confidentiality)
We have a legal obligation to protect the confidentiality of your identify, including information that is likely to lead to your identification, except in the case of the exceptions discussed below.
Your identity can be disclosed:
i) To ASIC, APRA, or a member of the Australian Federal Police;
ii) To a legal practitioner (for the purposes of obtaining legal advice or legal representation about the whistleblower provisions in the Corporations Act);
iii) To a person or body prescribed by regulations; or
iv) With your consent.
Further, information contained in a disclosure can be disclosed without your consent if:
i) The information does not include your identity;
ii) All reasonable steps have been taken to reduce the risk that you will be identified from the information; and
iii) It is reasonably necessary for investigating the issues raised in the disclosure.
Protection from detriment
We have a zero tolerance for acts of retaliation and all steps necessary will be taken to protect you from detrimental conduct, or threats to cause detrimental conduct in relation to a disclosure you have made.
Examples: Prohibited detrimental conduct
- Injury of an employee in his or her employment
- Alteration of an employee’s position or duties to his or her disadvantage
- Discrimination between an employee and other employees of the same employer
- Harassment or intimidation
- Harm or injury, including psychological harm
- Damage to a person’s property, reputation, business or financial position
Examples: Actions that are not detrimental conduct
- Managing a discloser’s unsatisfactory work performance, if in line with the performance management framework
- Administrative action necessary and reasonable for the purpose of protecting a discloser from detriment
Compensation and other remedies
If you suffer loss, damage or injury due to a disclosure, and we have failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct, you or any other employee or person may seek compensation and other remedies through the courts. We encourage you to seek independent legal advice if you feel you have suffered loss, damage or injury due to a disclosure.
Protection from civil, criminal and administrative liability
You will be protected from civil, criminal and administrative liability in relation to your protected disclosure. However, it is important to note that these protections do not grant you immunity for misconduct that may be revealed from your disclosure.
6. How we will support you
Identity protection (Confidentiality)
Should you wish to remain anonymous, all necessary steps will be taken to protect the confidentiality of your identity. All information received will be treated confidentially and sensitively. Any concern reported to the Ethics Office is taken seriously and investigated full. As detailed in the BNY Mellon Code of Conduct, the Ethics Office allows for anonymous reporting and will protect your confidentiality to the fullest extent possible.
The following steps will be taken in relation to disclosures handled by all other Eligible Recipients, including a Whistleblower Protection Officer.
Steps to reduce the risk the discloser will be identified from the information provided in their disclosure
- Your identity or information that would lead to your identification will not be shared without your consent, except in the case of the exceptions noted above;
- Personal information or references to you witnessing an event will be redacted from your disclosure;
- A gender-neutral term will be used;
- You will be asked to help identify any parts of the disclosure you feel would identify you; and
- Disclosures will be handled and investigated by a Whistleblower Protection Officer or other qualified staff.
Record keeping and information sharing
- Material relating to the disclosure will be stored securely;
- Access rights to the information disclosed will be limited to those involved in to investigation of the disclosure;
- Even where you have provided consent, your identity or information that would reveal your identity will only be revealed on a need to know basis (for example to those directly involved in handling and investigating the disclosure); and
- Each person involved in handling and investigating the disclosure will be reminded of the confidentiality requirements.
Consideration should be given to the fact that while every effort will be made to protect your confidentiality, in practice, there will be times where your identity may be obvious if for example:
(i) you have previously told people about your intention to make a disclosure;
(ii) you are one of a small number of people with access to the information you are disclosing; or
(iii) the information being disclosed is information that you have been told in confidence.
Protection from detriment
We have a zero tolerance for acts of retaliation. It is illegal for someone to threaten or cause detriment to you because they believe you have made or will make a disclosure. All reasonable steps will be taken to protect you from detriment and disciplinary action will be taken against any employee who engages in retaliation or detrimental acts or omissions against you.
All managers will be trained on their responsibilities regarding confidentiality and prevention of detrimental conduct, through face to face training and periodic communications.
If you feel you have suffered detriment as a result of your disclosure you may contact the Whistleblower Protection Officer, seek independent legal advice or contact ASIC, APRA or the ATO.
Current employees and their family members have access to the Employee Assistance Programme (“EAP”) which provides confidential counselling services. Additionally, all current and former employees may request additional information and support from the Whistleblower Protection Officer if required.
If you are a non-employee, we will endeavor to support you but will be unable to provide the same practical support provided to employees.
7. Handling and investigating a disclosure
All concerns reported via the Ethics Office are taken seriously and will be investigated in accordance with Ethics Office procedures. Reports can be made anonymously, and you will be offered options to help preserve your anonymity and means by which to follow up on your report.
All other disclosures will be referred to a Whistleblower Protection Officer and follow the procedure outlined below. Without consent, Eligible Recipients should take care to ensure that the identity of the discloser or any information that carries the risk of identifying the discloser is not revealed.
We acknowledge that there may be limitations on the investigation process, for example in circumstances where we are unable to contact you or where the disclosure has been made anonymously. If you make an anonymous disclosure we will, where possible, offer you the opportunity to provide limited consent (e.g. consent to allow your identity to be revealed to a limited number of people to allow for a proper investigation).
Assessment and investigation of the disclosure
The Whistleblower Protection Officer will assess disclosures and determine whether they fall within the scope of this policy. If you have provided your identity and/or contact details, we will aim to contact you within 3 business days to acknowledge receipt of the disclosure and advise you on next steps.
Investigations will be conducted in an objective, fair and timely manner while preserving the confidentiality of the investigation. Investigations will be conducted independently of you, any individual subject to the disclosure and any department or business unit involved. The timeframe of investigations and the frequency of updates may vary depending on the nature of the disclosure.
The Whistleblower Protection Officer will oversee the investigation and will:
- conduct a preliminary review of the disclosure and determine if a formal in-depth investigation is required;
- assess any potential risk of detriment to you;
- ensure the investigation is conducted in a timely, fair and objective manner;
- determine the person’s within or outside the organization that should lead the investigation;
- aim to provide regular updates on the progress of the investigation (if possible to contact you);
- where possible, notify the persons against whom an allegation has been made and allow them opportunity to respond to the allegation;
- ensure appropriate and proportionate action is taken to resolve issues identified; and
- brief all people involved in the investigation of the confidentiality requirements.
The Whistleblower Protection Officer or those involved in the investigation process may need to contact you for further information to assist with the investigation. If you have not provided your consent to be contacted or you have made an anonymous disclosure this may affect our ability to investigate the disclosure
Where possible and to the extent permitted under applicable laws, the Whistleblower Protection Officer will notify you and the person(s) against whom allegations have been made of the outcome of the investigation. It should be noted that for confidentiality reasons and to protect the interest of all parties, there may be circumstances where it is not appropriate to reveal details of the outcome to you or where details of the outcome are limited.
8. Fair treatment of individuals mentioned in a disclosure
We are committed to ensuring the fair treatment of any individuals mentioned in a protected disclosure. The Whistleblower Protection Officer will advise any employee who is the subject of disclosure about the disclosure if and when required to ensure procedural fairness and prior to any actions being taken or adverse findings being made.
9. Eligible recipients – Obligations
All recipients of a wrongdoing disclosure must treat it seriously and in confidence. It is critical that Eligible Recipients understand and observe the obligations regarding the confidentiality of the individual making the disclosure. If you receive a wrongdoing disclosure, you must not reveal the identity or information that may reveal the identity of the person making the disclosure without their consent. Where possible, an Eligible Recipient should request limited consent to reveal the identity of the discloser to the Whistleblower Protection Officer. If there is uncertainty, contact the Whistleblower Protection Officer for further advice and guidance.
Last updated: 10 December 2019 (current)
1Eligible Recipients include (i) an officer or senior manager, (ii) the internal or external auditor or actuary, (iii) a personal authorised by BNY Mellon to receive disclosures that may qualify for protection.