The long awaited Protected Disclosures (Protection of Whistleblowers) Bill (Bill) completed its third reading yesterday, and is expected to receive Royal Assent in the coming weeks before coming into force on 1 July 2022. A late amendment contained in a Supplementary Order Paper appears to have extended the protections afforded by the Bill to disclosures about bullying and harassment, which poses a number of potential issues for organisations going forward.

Bullying and harassment as a ground for a protected disclosure

The relevant amendment relates to the expansion of the definition of “serious wrongdoing” to include “a serious risk to the health and safety of any individual”. In light of the treatment of bullying and harassment as a workplace health and safety risk (both by WorkSafe New Zealand (WorkSafe) and the Ministry of Business, Innovation and Employment (MBIE)), this wording would appear to cover disclosures about bullying and harassment. This is supported by “bullying or harassment, including sexual harassment” being listed as an example of a concern that could be raised in a protected disclosure under the Bill (for which WorkSafe and the Human Rights Commission are listed as the corresponding “appropriate authorities”).

This is a significant change to the application of the Bill at a late stage of the legislative process, and was not one recommended by the Education and Workforce Select Committee’s report on the Bill in March 2021. The expansion of the Bill’s applicability to concerns regarding bullying and harassment is particularly surprising given there has not been any opportunity for this to be addressed through public consultation, and the fact that MBIE is yet to report back on its public consultation regarding workplace bullying and harassment (for which public submissions closed on 31 March 2021).

MBIE’s ongoing public consultation on bullying and harassment was specifically addressed in the Select Committee’s initial report, and the Select Committee recommended that further policy consideration be given to whether “serious wrongdoing” should be extended beyond its current focus on serious and immediate risks, to address issues that could have ongoing or cumulative effect on individuals (such as bullying and harassment). The Select Committee recommended that adding a five-year review clause to the Bill would allow time to assess its impacts, and for “some of the complex issues to be properly analysed and consulted on”. Unfortunately, no such review clause has made its way into the Bill.

This significant change raises concerns that the regime could be used to raise issues that would ordinarily be classified as personal grievances, and which may be more appropriately dealt with by the Employment Relations Act 2000 or the Health and Safety at Work Act 2015. While the Bill provides a receiver with the ability to decide that no action is required (including on the basis that “the matter is better dealt with by other means”), organisations may still be put to the task of treating such concerns as protected disclosures and complying with the relevant process requirements set out in the Bill, and any internal procedure requirements. 

We intend to raise these concerns with the Hon Chris Hipkins, and encourage this specific amendment to be subject to further public consultation before the Bill is given Royal Assent.

Other notable changes

Other changes to the Bill following recommendations by the Select Committee include:

• Clarifying that the release of any information which may identify the discloser (subject to limited exceptions) is an interference with the privacy of an individual for the purposes of the Privacy Act 2020, regardless of whether the release of such information has any impact, or the potential to impact, on the discloser.

• The requirement for a receiver of a protected disclosure to advise a discloser of any decision to take no action, and the reasons for that decision.

Preparing for the changes

In addition to those new changes mentioned above, the Bill is designed to strengthen the whistleblower regime, including by:

• Clarifying the definition of serious wrongdoing and extending its application to cover unlawful, corrupt or irregular use by the private sector of public funds and authority.

• Enabling people to report serious wrongdoing to an appropriate authority at any time (currently this is only possible if a disclosure is about the head of an organisation or if there is urgency or exceptional circumstances). 

• Setting out a clearer process for what organisations should do within a 20 working day timeframe of receiving a protected disclosure. 

• Clarifying internal procedure requirements for public sector organisations and requiring them to state how they will provide support to whistleblowers. 

• Clarifying the potential forms of adverse conduct whistleblowers may face.

• Amending the Employment Relations Act 2000 to include a standalone personal grievance for retaliating or threatening to retaliate against a whistleblower.

Organisations will therefore have approximately one and a half months to be ready for those changes to come into effect, including to ensure that internal whistleblowing policies and procedures are in place and fit for purpose (noting that internal procedure requirements are mandatory for public sector organisations only).

It is an opportune time for organisations to revisit both their bullying and harassment and internal whistleblowing procedures. This is especially important in light of the new guidance provided by the Bill for what organisations should be doing after receiving a protected disclosure.

Get in touch

Please get in touch with any of our contacts for assistance with reviewing or introducing protected disclosure policies, or to discuss the upcoming changes in more detail.

Special thanks to Matt Austin for his assistance in writing this article.