1. Introduction
Marsh is committed to encouraging colleagues to report concerns about misconduct or an improper state of affairs without the fear of retaliation. Marsh encourages whistleblowers to seek independent legal advice but this Policy outlines some of your rights as a whistleblower. You can obtain additional information about this Policy by contacting Marsh’s Chief Compliance Officer or Chief Counsel, before making a disclosure, or in relation to an ongoing investigation.
The purpose of this Policy is to meet Marsh’s legal and regulatory obligations but also to encourage more disclosures of wrongdoing, deter wrongdoing in line with Marsh’s Enterprise risk management and governance approaches, and to provide individuals who wish to make a disclosure with confidence that they will be protected and supported. Therefore, this policy is an important tool to ensure that we continue to always operate ethically, and where we don’t, that appropriate action is taken in a timely manner.
This Policy outlines:
a. the steps a colleague should follow if they wish to raise concerns as a whistleblower; and
b. the process Marsh will follow should it receive information from a whistleblower.
2. Scope
This Policy applies to:
- Marsh Pty Ltd
- Mercury Insurance Services Pty Ltd
- Echelon Australia Pty Ltd
- Marsh & McLennan Agency Pty Ltd
- JLT Risk Solutions Pty Ltd
- Victor Insurance Australia Pty Ltd
- Marsh Advantage Insurance Pty Ltd
- JLT Group Services Pty Ltd
- Victor Insurance Pty Ltd
- Marsh Resolutions Pty Ltd
- The Recovre Group Pty Ltd
(collectively referred to in this Policy as “Marsh”).
3. What is Whistleblowing?
Whistleblowers play an important role in identifying and calling out misconduct and breaches of the law and there are legal protections for eligible whistleblowers to support that conduct.
In Australia, the Corporations Act will provide protection to eligible whistleblowers who disclose information about misconduct, dishonest or illegal activity which has occurred within a company. Whistleblowers are protected, provided the following conditions are met.
4. Types of reports
4.1 What is protected
Reports of misconduct or a breach of the law by Marsh or its managers or employees to specific people is a protected report.
For example, you will be protected under the law if you report:
a. fraud, including defrauding of Marsh or its customers or suppliers;
b. the misleading of people to make a sale;
c. offering or accepting a bribe;
d. negligence;
e. financial irregularities;
f. information that indicates significant risk to the stability of the financial system; or
g. breach of trust or duty.
You will also be protected if you raise an improper state of affairs or circumstances about Marsh or you had reasonable grounds to suspect that was the case. That may not represent a breach of law or regulation. For example, a business practice that causes consumer harm.
4.2 What is not protected
If your report of misconduct is based solely on a personal work-related grievance you have, the whistleblower protections will not apply.
Examples include:
a. an interpersonal conflict between you and another employee including performance management issues;
b. a decision relating to your engagement, transfer or promotion;
c. a decision relating to the terms and conditions of your engagement, or
d. a decision to suspend or terminate your engagement, or otherwise to discipline you.
e. In the event that a deliberately false or vexatious report is made you may not be entitled to the Whistleblower protections.
A personal work-related grievance may still qualify for whistleblower protection if:
a. it also includes information about Marsh misconduct i.e. a mixed report;
b. Marsh has breached employment or other laws punishable by imprisonment of 12 months or more, engaged in conduct that represents a significant risk to public safety or the stability of, or confidence in, the financial system, or the disclosure relates to information that suggests misconduct beyond the disclosers personal circumstances;
c. the discloser suffers from or is threatened with detriment for making an eligible disclosure; or
d. the disclosure is for legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act.
5. Eligible Whistleblowers
5.1 When are you an eligible whistleblower?
To receive the whistleblower protection a person must be an eligible whistleblower. This includes:
a. All company officers, employees including temporary employees, contractors or suppliers of Marsh (whether paid or unpaid), employees of a supplier (whether unpaid or paid), and associates;
b. Former company officers, employees, workers, contractors or suppliers, of Marsh;
c. Spouses, relatives and dependents of any of the above individuals or of that individual’s spouse
6. Reporting a concern
6.1 Who to report a concern to
In order to for the whistleblower protections to apply, you should report your concerns to:
a. a director, officer, senior manager, internal or external auditor, or actuary of the company that the concerns relate to;
b. people authorised by a company to receive whistleblower reports – such as dedicated whistleblower hotlines, the Whistleblower Investigation Officer, complaints officers. Marsh has authorised those Eligible Recipients in Appendix A;
c. ASIC, APRA or the ATO; or
d. a legal practitioner, for the purpose of obtaining legal advice or legal representation about the whistleblower protections.
Public interest and emergency disclosures can be made to a journalist or parliamentarian under certain circumstances and qualify for whistleblower protection (see section 8.2 below).
Marsh encourages you to make your disclosure to the Eligible Recipients in Appendix A in the first instance as we wish to identify any wrongdoing as early as possible. However, a disclosure can be made directly to a regulator, or other eligible external parties without making a prior disclosure to Marsh and still qualify for protection under Corporations Act.
You can make a report anonymously and remain anonymous throughout the process and afterwards, while still being protected under the Corporations Act (see section 7 below). For example, you can adopt a pseudonym and use an anonymised e-mail address rather than your company e-mail address. A whistleblower who wishes to remain anonymous can nonetheless maintain ongoing two-way communication with Marsh, so that Marsh can ask follow-up questions or provide feedback. A whistleblower can refuse to answer any questions, at any time, that could reveal their identify.
Consent must be obtained in order to disclose the details of a whistleblower, however consent does not have to be obtained if disclosure of details (but not the whistleblower’s identity) is required in order to investigate the complaint.
All endeavours will be made to protect the identity of individuals that make a report anonymously, for example redaction of identifying information, use of gender-neutral language and appropriately trained staff conducting investigations.
A whistleblower can refuse to answer questions that they feel could reveal their identity at any time, including during follow up conversations.
6.2 How to report a concern
To report misconduct or illegal activities, colleagues can contact any of the eligible recipients listed or the Whistleblower Investigation Officer at any time, including out of normal business hours.
The Chief Compliance Officer or a delegate(s) has been appointed to the role of Whistleblower Investigation Officers. The role of these officers is to receive whistleblower reports, and to investigate and escalate to appropriate parties as necessary.
In addition, a senior member of Marsh’s Human Resources team has been appointed as its Whistleblower Protection Officer. The role of this person is to ensure that the interests of the whistleblower are safeguarded in accordance with the applicable legislation and Marsh’s internal policies.
Concerns can also be reported anonymously, at any time, via the MMC Ethics & Compliance Line, which is operated from overseas and independently of Marsh Australia.
Refer to ‘Appendix A’ for contact details of Eligible Recipients who Marsh has authorised to receive whistleblower disclosures, however, that does not restrict your choice of eligible recipient as set out in section 6.1 above.
7. Whistleblower Protections
In Australia, the Corporations Act will provide protection to eligible whistleblowers who disclose information about misconduct, dishonest or illegal activity which has occurred within a company. Whistleblowers are protected, provided the following conditions are met:
a. You are an eligible whistleblower; and
b. You make a report to an eligible recipient.
Where the conditions above are not met the disclosures may still be protected under other legislation such as the Fair Work Act 2009 (Cth).
Protections are also provided by the tax whistleblower regime under Part IVD of the Taxation Administration Act 1953 (Taxation Administration Act).
7.1 The information disclosed – a protected disclosure
The whistleblower must have reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs, or circumstances relating to the company and/or that the company or company officer may:
a. Have breached the Corporations Act;
b. Have breached any other financial sector laws enforced by ASIC or APRA;
c. Have committed an offence against any other law of the Commonwealth that is punishable by imprisonment of 12 months or greater; or
d. Represent a significant risk to public safety or the stability of, or confidence in, the financial system.
Reasonable grounds means that a reasonable person in your position would also suspect that information indicates misconduct or a breach of law.
Generally, there is no protection where the information relates to personal work-related grievances. You can raise your personal work-related grievances with your usual Human Resources contact.
7.2 The protections
Provided the disclosure meets the requirements of a protected disclosure discussed above, the whistleblower will be entitled to the following legal protections whether the disclosure is made internally to Marsh or externally to an eligible recipient:
- Marsh will protect the information and the identity of the Whistleblower and keep it confidential. Marsh may disclose, without consent, the identity of the whistleblower to ASIC, APRA or the Australian Federal Police, or the company’s lawyers.
- Marsh may disclose information other than the identity of the whistleblower without the whistleblower’s consent if reasonably necessary for investigating the issues raised in the whistleblower’s disclosure and reasonable steps are taken to protect the identity of the whistleblower, including redacting identifiers such as name, title, location or team. Outside of the exceptions above, it is illegal for a person to identify a whistleblower or disclose information that is likely to lead to the identification of the whistleblower.
- A whistleblower cannot be subject to any criminal liability (e.g. prosecution for unlawfully releasing information, or other use of the disclosure against the whistleblower in a prosecution), civil liability (e.g. action for breach of employment contract, duty of confidentiality) or administrative liability (e.g. disciplinary action for making the disclosure) for making the disclosure;
- A whistleblower cannot be disciplined or have their employment terminated as a result of making the disclosure. Marsh may implement reasonable administrative action designed to protect the whistleblower, or manage a whistleblower’s unsatisfactory work performance in the normal course of business; and
- A whistleblower will be protected from detrimental acts such as bullying, termination of employment, discrimination, the amendment of the terms of their role to the whistleblower’s disadvantage, or the unreasonable rejection of leave applications. This protection will include the appointment of a ‘Whistleblower Protection Officer’ and ensuring that information on the whistleblower remains confidential.
Should Marsh breach the confidentiality of the identity of the whistleblower, or should the whistleblower become subject to victimisation or threatened victimisation, there are a number of penalties or remedies which may be imposed against Marsh and /or its employees. The release of details of the identity of a whistleblower is a criminal offence and the individual who releases the details could be subject to a fine and/or imprisonment. The whistleblower may also be entitled to claim compensation and other remedies through the courts if they suffer loss, damage or injury, and Marsh failed to take reasonable precautions and exercise due diligence to prevent the detrimental conduct.
You can raise a complaint about any breach of your confidentiality, victimisation or threatened victimisation, or any other aspect of this Policy with the Chief Compliance Officer or Chief Counsel. You can also lodge a complaint with a regulator, such as ASIC, APRA or the ATO, for investigation, if you believe you have suffered detriment.
It is important to note that the above protections do not provide immunity to the whistleblower for any misconduct they have engaged in.
If a disclosure from a Whistleblower results in a determination that the disclosure is incorrect, the Whistleblower is still entitled to the protections outlined above.
8. Investigating a whistleblower report
8.1 Assessing disclosures
A Whistleblower Investigation Officer will assess whether the disclosure meets the criteria of a protected disclosure as outlined above.
In investigating the disclosure, the Whistleblower Investigation Officer may consider the following:
- Is it appropriate to engage the MMC Audit team or a legal practitioner to consider the evidence provided and conduct preliminary investigations?
- Does the information provided support the alleged conduct?
- If proven, would the conduct amount to a breach of the Corporations Act, or other legislation, or does it represent a danger to the public or the financial system?
- Was there any delay in disclosing the information, and if so, what explanation was given for the delay?
If required by procedural fairness and natural justice, any employee who are the subject of a whistleblowing report will be informed of the subject matter of the report and may be given an opportunity to respond, prior to any adverse actions being taken, providing that the confidentiality of the whistleblower is not jeopardised.
There may be limits to the investigation that Marsh can conduct e.g. if a disclosure was made anonymously and the whistleblower refuses to provide an ongoing contact or has not provided a means to contact them at all. In certain limited circumstances, it may not be possible to commence an investigation should the Whistleblower refuse to disclose their identity or if we are not able maintain ongoing communication with the Whistleblower.
When an investigation needs to be undertaken, the process will be objective, fair and independent.
In situations where it is appropriate to document findings, once the report has been assessed and/or investigated, the findings and outcome will be formally documented and retained securely on file with the disclosure. Access to those materials will be restricted to those directly involved in managing and investigating the disclosure.
Provision of the final report to the Whistleblower will be decided on a case-by-case basis. There is no guarantee that a Whistleblower will be provided with any report on the matter.
8.2 Keeping the whistleblower informed
The Whistleblower Investigation Officer will endeavour to keep the whistleblower updated at least every 15 working days on the progress of the investigation and the findings (unless the report was made anonymously and without contact details). However, due to confidentiality issues they may not be able to provide much detail and there may be circumstances where it is not appropriate to provide details of the outcome to the whistleblower. The frequency and timeframe of updates may vary depending upon the nature of the disclosure and investigation.
Where the Whistleblower Investigation Officer concludes that the disclosure amounts to a protected disclosure and should be referred to Marsh’s Chief Compliance Officer or Chief Counsel, they will:
- Notify the person who made the disclosure of that conclusion and either obtain their consent to disclose or keep their identity confidential;
- Follow the established practice of assessing incidents to determine whether the breach is to be reported to ASIC, AFCA or any other relevant regulatory body e.g. OAIC;
- Allocate a Whistleblower Protection Officer to commence appropriate protection procedures;
- Securely store all details and documentation relating to the investigation; and
- Ensure that systemic or recurring problems of corruption and non-compliance are appropriately reported to senior management where appropriate, being mindful of the need to maintain the whistleblower’s confidentiality.
The Whistleblower may make a report to a regulatory body e.g. ASIC, APRA or the ATO.
The whistleblower also has the right to contact the media or a Member of Parliament only if:
a. at least 90 days have lapsed since making a report to a regulator and there are reasonable grounds to believe no action has been taken, or the matter is one of public interest; or
b. the whistleblower believes, on reasonable grounds, that there is a substantial and imminent danger to the health or safety of one or more persons or the environment; and
c. they identify their initial disclosure to the applicable regulator and the intention to approach the media or parliamentarian.
The whistleblower should contact an independent legal adviser before making such a disclosure to the media or a member of parliament.
9. The Marsh & McLennan Companies Ethics & Compliance Line
Marsh colleagues are required to comply with the MMC Code of Conduct ‘The Greater Good’, which in turn requires compliance with laws and regulations.
Marsh colleagues are encouraged to disclose violations of The Greater Good or misconduct within the organisation to managers, Legal & Compliance or Human Resources. To enable staff to make such disclosures the MMC Ethics & Compliance Line has been established.
For more information on the types of disclosure which can be made through the MMC Ethics and Compliance Line, please refer to The Greater Good, or www.compliance.mmc.com, or www.EthicsComplianceLine.com.
If you wish to rely on the protections of the Corporations Act for whistleblowers, you must either:
i. follow the whistleblower reporting process set out in section 6.1 above, or
ii. contact ASIC or APRA directly, or
iii. contact a legal adviser for the purpose of obtaining legal advice or legal representation.
Disclosers who submit reports about issues and concerns will not be able to access the whistleblower protections under the Corporations Act (or Taxation Administration Act where applicable) unless they follow the prescribed process.
9.1 Commitment to protecting whistleblowers
Whistleblower Protection Officers are responsible for ensuring whistleblowers are protected from direct or indirect detrimental action and that the culture of the workplace is supportive of protected disclosures being made.
A Whistleblower Protection Officer may:
- Review the immediate welfare and protection needs of a whistleblower and seek to ensure a supportive work environment;
- Advise the whistleblower of the protections available to them;
- Listen and respond to any concerns regarding harassment, intimidation or victimization;
- Keep contemporaneous records of all aspects of the case management of the whistleblower including all contact and follow-up action; and
- Ensure the expectations of the whistleblower are realistic.
All colleagues are aware that it is an offence to take any type of detrimental action against a person who makes a disclosure. Managers are required to ensure that their teams understand the purpose of this Policy and the protections afforded.
Whistleblower Investigation Officers will receive appropriate training in order to handle whistleblowing reports.
This Policy will appear on Marsh’s intranet page and can be located by searching “Whistleblower Policy”.
9.2 Reporting occurrence of detrimental action
If the whistleblower reports an incident, or threat of harassment, victimisation, discrimination or adverse treatment that would amount to detrimental action being taken in reprisal for making the disclosure, the Whistleblower Protection Officer will:
- Record details of the incident;
- Advise the whistleblower of their rights under the Corporations Act; and
- Advise the Whistleblower Investigation Officer of the detrimental action.
Any detrimental action for making a disclosure can be an offence against the Corporations Act and may require a report to the regulators. Where such action is reported, the Whistleblower Investigation Officer will assess the report as a new disclosure under the relevant legislation.
