Approved by the Board on 27 February 2023
NH3 Clean Energy Limited aims to provide an environment where employees and others in the workplace are treated fairly and with respect. Employees and others are encouraged to report any wrongdoing.
NH3 also aims to help provide employees and others with a supportive work environment in which they feel able to raise issues of legitimate concern to NH3, without fear of victimisation, detriment or other retribution and provide suitable avenues for reporting of matters that may cause loss to or damage NH3's reputation.
APPLICATION OF POLICY
Eligible Whistleblowers
An eligible whistleblower is an individual who is, or has been, any of the following in relation to the Company:
an officer or employee (eg current and former employees who are permanent, part-time, fixed-term or temporary, interns, secondees, managers, and directors)
a supplier of services or goods to NH3 (whether paid or unpaid), including their employees (eg current and former contractors, consultants, service providers and business partners)
an associate of NH3, and
a relative, dependant or spouse of one of the above persons.
See s1317AAA of the Corporations Act. Also see s14ZZU of the Taxation Administration Act.
This policy applies to eligible whistleblowers in relation to reports concerning wrongdoing. This policy must not be used for trivial or vexatious matters (being matters that the discloser knows, or ought to know have no substance). This policy is not intended to replace other reporting structures or grievance procedures such as those for dispute resolution, grievances, equal opportunity, discrimination, harassment, or bullying.
This Policy does not form part of any employee's contract of employment. Nor does it form part of any other employee's contract for service.
Protection for Whistleblowers
A discloser qualifies for protection as a whistleblower under the Corporations Act if they are an eligible whistleblower in relation to the Company and:
they have made a disclosure of information relating to a 'disclosable matter' directly to an 'eligible recipient' or to ASIC, APRA or another Commonwealth body prescribed by regulation
they have made a disclosure to a legal practitioner for the purposes of obtaining legal advice or legal representation about the operation of the whistleblower provisions in the Corporations Act, or
they have made an 'emergency disclosure' or 'public interest disclosure'.
NH3 is committed to the highest standards of legal, ethical and moral behaviour. NH3 will not tolerate unethical, unlawful or undesirable conduct. This policy documents NH3's commitment to maintaining an environment in which employees are able to report, without fear of retaliatory action, concerns about any serious instances of wrongdoing that they believe may be occurring in NH3.
Disclosable Matters
Reporting of a disclosable matter may qualify for protection under the s1317AA Corporations Act. Disclosable matters include conduct that may not involve a contravention of a particular law.
Disclosable matters involve information that the discloser has reasonable grounds to suspect concerns misconduct, or an improper situation or circumstances, in relation to Hexagon or its related bodies corporate. The following are examples of various types of wrongdoing that would be considered disclosable matters:
illegal conduct, such as theft, dealing in, or use of illicit drugs, violence or threatened violence, and criminal damage against property in the workplace or affecting the NH3 workplace,
fraud, money laundering or misappropriation of funds,
offering or accepting a bribe,
financial irregularities,
failure to comply with, or breach of, legal or regulatory requirements, and
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.
A discloser can still qualify for protection even if their disclosure turns out to be incorrect.
Disclosures relating to personal work-related grievances do not qualify for protection under the Corporations Act. Examples of these may include:
an interpersonal conflict between the discloser and another employee
a decision that does not involve a breach of workplace laws
a decision about the engagement, transfer or promotion of the discloser
a decision about the terms and conditions of engagement of the discloser, or
a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.
A personal work-related grievance may still qualify for protection if:
it includes information about misconduct, or information about misconduct includes or is accompanied by a personal work-related grievance (mixed report)
the Company has breached employment or other laws punishable by imprisonment for a period 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
the discloser suffers from or is threatened with detriment for making a disclosure, or
the discloser seeks legal advice or legal representation about the operation of the whistleblower protections under the Corporations Act.
Reporting any Wrongdoing
Any Employee who detects or has reasonable grounds for suspecting wrongdoing is encouraged to raise any concerns with an eligible recipient through normal reporting channels. The Company Secretary, the CEO and the external auditor are the nominated eligible recipients for NH3.
Contact email addresses for the NH3 eligible recipients are:
Company Secretary - Joan Dabon: joan.dabon@sourceservices.com.au or +61 421 514 678
Chairman - Charles Whitfield: charlesw@hexagonresources.com or +61 447 433 888
Auditor - Phil Renshaw: phil.renshaw@bdo.com.au or +61 8 6382 4850
A discloser should make a disclosure directly to one of NH3's eligible recipients to be able to qualify for protection as a whistleblower under the Corporations Act (or the Taxation Administration Act, where relevant). The role of eligible persons is to receive disclosures that qualify for protection. A discloser can obtain additional information before formally making their disclosure by contacting an eligible recipient or an independent legal adviser.
The eligible recipient may appoint an independent investigator to inquire into the allegations. Alternatively, it may be appropriate to continue to be dealt with by the eligible recipient. If proposed expenditure exceeds authorised expenditure limits prior approval in accordance with the expenditure hierarchy will be required. Subject to confidentiality requirements, the eligible recipient will inform the Board immediately a determination has been made as to whether the disclosure qualifies for protection, or a formal, in-depth investigation is required.
Where it is shown that a person purporting to be a whistleblower has knowingly made a false report of wrongdoing, then that conduct itself will be considered a serious matter. A false report includes matters the discloser knows, or ought to known, have no substance.
Making a false report may lead to the whistleblower being the subject of disciplinary action which may include reimbursement of any costs incurred by NH3 to investigate the claims and/or dismissal.
Disclosures to a legal practitioner for the purposes of obtaining legal advice or legal representation in relation to the operation of the whistleblower provisions in the Corporations Act are protected (even if the legal practitioner concludes that a disclosure does not relate to a 'disclosable matter').
Disclosures of information relating to disclosable matters can be made to ASIC, APRA or another Commonwealth body prescribed by regulation and qualify for protection under the Corporations Act.
Public Interest or Emergency Disclosures
Disclosures can be made to a journalist or parliamentarian under certain circumstances and qualify for protection. It is important for the discloser to understand the criteria for making a public interest or emergency disclosure. A disclosure must have previously been made to ASIC, APRA or a prescribed body and written notice provided to the body to which the disclosure was made. It should also clarify that, in the case of a public interest disclosure, at least 90 days must have passed since the previous disclosure.
A 'public interest disclosure' is the disclosure of information to a journalist or a parliamentarian, where:
at least 90 days have passed since the discloser made the disclosure to ASIC, APRA or another Commonwealth body prescribed by regulation
the discloser does not have reasonable grounds to believe that action is being, or has been taken, in relation to their disclosure
the discloser has reasonable grounds to believe that making a further disclosure of the information is in the public interest, and
before making the public interest disclosure, the discloser has given written notice to the body (ie the body to which the previous disclosure was made) that:
includes sufficient information to identify the previous disclosure, and
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:
the discloser has previously made a disclosure of the information to ASIC, APRA or another Commonwealth body prescribed by regulation
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
before making the emergency disclosure, the discloser has given written notice to the body (ie the body to which the previous disclosure was made) that:
includes sufficient information to identify the previous disclosure, and
states that the discloser intends to make an emergency disclosure, and
the extent of the information disclosed in the emergency disclosure is no greater than is necessary to inform the journalist or parliamentarian of the substantial and imminent danger.
Confidentiality of Whistleblower's Identity and Whistleblower Reports
If a person makes a report of alleged or suspected wrongdoing under this policy NH3 will endeavour to protect that person's identity from disclosure. This may not occur if confidentiality is not a practical option.
Disclosures can be made anonymously and still be protected under the Corporations Act. A discloser can choose to remain anonymous while making a disclosure, over the course of the investigation and after the investigation is finalised.
Communication may be through anonymous email addresses and discloser's may adopt a pseudonym for the purposes of the disclosure.
Generally, NH3 will not disclose the person's identity unless:
the Employee making the report consents to the disclosure
the disclosure is required or authorised by law, and/or
the disclosure is necessary to further the investigation.
Generally, reports made under this policy will be treated confidentially. However, when a report is investigated it may be necessary to reveal its substance to people such as other Company personnel, external persons involved in the investigation process and, in appropriate circumstances, law enforcement agencies. At some point in time appropriate for the investigative process it will be necessary to disclose the fact and the substance of a report to the person who is the subject of the
report. While confidentiality is maintained, in some circumstances, the source of the reported issue may be obvious to a person who is the subject of a report.
Unauthorised disclosure of information relating to a report, the identity of an Employee who has made a report of wrongdoing or information from which the identity of the reporting person could be inferred will be regarded seriously and may result in a range of actions with recourse to legal or financial redress or in the case of Employees, disciplinary action, which may include dismissal.
Protection of Whistleblowers
NH3 is committed to protecting and respecting the rights of a person who reports wrongdoing in good faith. The protections apply not only to internal disclosures, but to disclosures to legal practitioners, regulatory and other external bodies, and public interest and emergency disclosures that are made in accordance with the Corporations Act.
Identity Protection
NH3 has various legal obligations to protect the confidentiality of a discloser's identity. It is illegal for a person to identify a discloser or disclose information that is likely to lead to the identification of the discloser. There are several exceptions to this rule, including if a person discloses the identity of the discloser:
to ASIC, APRA, or a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979)
to a legal practitioner (for the purposes of obtaining legal advice or legal representation about the whistleblower provisions in the Corporations Act)
to a person or body prescribed by regulations, or
with the consent of the discloser.
A person can disclose the information contained in a disclosure with or without the discloser's consent if:
the information does not include the discloser's identity
the Company has taken all reasonable steps to reduce the risk that the discloser will be identified from the information, and
it is reasonably necessary for investigating the issues raised in the disclosure.
Protection from Detrimental Acts or Omissions
A person cannot engage in conduct that causes detriment to a discloser (or another person), in relation to a disclosure, if:
the person believes or suspects that the discloser (or another person) made, may have made, proposes to make or could make a disclosure that qualifies for protection, and
the belief or suspicion is the reason, or part of the reason, for the conduct.
A person cannot make a threat to cause detriment to a discloser (or another person) in relation to a disclosure. A threat may be express or implied, or conditional or unconditional.
NH3 will not tolerate any detrimental conduct (being retaliatory action or threats of retaliatory action against any person who has made or who is believed to have made a report of wrongdoing, or against