glossary - icc spain, international chamber of commerce

1、Towards Comprehensive Public and Private Sector Whistleblower Protection: From Commitments to Effective ProtectionTable of ContentsExecutive Summary 7Glossary 10Introduction: Mainstreaming Integrity and Open Organisational Cultures through Detection and Protection 12Note 14Bibliography 15PART IWHIST

2、LEBLOWER PROTECTION IN THE PUBLIC SECTORChapter 1. The armour of whistleblower protection: laws and provisions as legal shields 181. International and domestic sources of protection 192. The vast majority of OECD countries have a legal framework in place to protect whistleblowers.203. The importance

3、 of protecting whistleblowers is evidenced by the growing number of dedicated laws 214. Protection on an ad hoc basis: The way of the majority245. Notes 286. Bibliography 30Chapter 2. Whistleblower protection in practice: To disclose, or not to disclose341. Broadening the horizons of whistleblower c

4、overage 352. Scope of subject matter: A balancing act393. Measures in place to preclude reporting in bad faith: The way of the majority444. Clear channels for a clear conscience: The availability of clear reporting channels facilitates disclosures 465. The debate on anonymous reporting 556. Use of i

5、ncentives to encourage reporting: Monetary rewards, follow-up mechanisms and certificates 587. Notes 618. Bibliography 63Chapter 3. Protection from Reprisal in Practice 681. There is a correlation between dedicated law and protection from retaliatory action 692. Effective protection from reprisal wa

6、rrants a reverse burden of proof process 713. Disciplinary action: a sanction for retaliation 724. A dedicated law and a dedicated reprisal appeals body rarely go hand in hand 745. Availability of interim relief and judicial review are necessary 766. Reinstatement, as a remedy for reprisal is the no

7、rm767. Notes 788. Bibliography 78Chapter 4. Language, Culture and Awareness Raising to Encourage Whistleblowing812. Notes 873. Bibliography 87PART IIWHISTLEBLOWER PROTECTION IN THE PRIVATE SECTORChapter 5. Whistleblower Protection in the Private Sector 901. Private sector whistleblower protection la

8、ws: almost a legal vaccuum922. Dedicated legislation933. Criminal Code provisions954. Labour Code provisions955. Sector-specific laws966. Protecting the Retaliator? The collision of data protection laws with whistleblower protection frameworks987. Translating intentions to actions: Guidance on priva

9、te sector whistleblower protection988. Private sector whistleblowers report internally first 1039. Notes 11010. Bibliography 113Annex I115Annex- Methodology 117Figures and TablesFigure 1.1 Most OECD Countries Provide Legal Protection to Public Sector Whisteblowers, to a Varying Degree21Figure 1.2 En

10、try into Force of Dedicated Whistleblower Protection Laws: A Timeline 23Table 2.1 Varying Degrees of Whistleblower Protection in the Public Sector37Figure 2.1 Less than Half of OECD Country Respondents Consider a Broad Range of Wrongdoings as Constituting a Protected Disclosure44Figure 2.2 The Major

11、ity of OECD Country Respondents have Measures to Preclude Reporting in Bad Faith in the Public Sector 45Figure 2.3 One Third of OECD Country Respondents Follow a Tiered Approach for Countries for Reporting Protected Disclosures in the Public Sector 47Figure 2.4 Progression of Tiers in the UK System4

12、9Figure 2.5 Anonymous Reporting in the Public Sector is Available in Half of Surveyed OECD Countries 57Table 2.2 Amounts collected and awards paid to whistleblowers by the IRS (Financial years 2009-2013) 59Figure 2.6 One Third of OECD Countries Surveyed, have Incentives in Place for Public Sector Wh

13、istleblowers to Come Forward 59Figure 3.1 Protection from all Discriminatory or Retaliatory Personnel Actions is Provided for by 15 OECD Countries Surveyed 69Table 3.1 Reasons for Not Reporting Suspected Serious Misconduct in Australia (2012 and 2013) 71Figure 3.2 The Vast Majority of OECD Country R

14、espondents have Penalties in Place for Retaliation against a Whistleblower in the Public Sector 73Figure 4.1 Only Slightly More than Half of OECD Countries have Whisteblower Protection Awareness Raising Activities in the Public Sector83Table 5.1 International guidance for business on private sector

15、whistleblower protection100Figure 5.1 In concluded foreign bribery cases, more whistleblowers report internally than to external law enforcement authorities104Figure 5.2 Most surveyed organisations had a mechanism to report suspected instances of serious corporate misconduct105Figure 5.3 More than 1

16、/3 of organisations with a reporting mechanism did not have, or did not know of, a written policy of protecting those who report from reprisals105Figure 5.4 In-person reporting is the most prevalent model of reporting mechanism 106Figure 5.5 More companies provide anonymous than confidential reporti

17、ng107Figure 5.6 Unified reporting is the most common model for internal reporting mechanisms107Figure 5.7 Fraud is most commonly reported via internal mechanisms108Figure5.8 Chief Compliance Officers most often receive reporting via internal reporting mechanisms109Figure 5.9 On what basis is follow-

18、up provided to disclosers? 110Boxes Box 1.1 Whistleblower Protection within the Swiss Cantons 27Box 2.1 A detailed definition of protected disclosures in the United Kingdom40Box 2.2 Disclosable conduct as defined by the Australian Public Interest Disclosure Act 201341Box 2.3 The Clarification of Pro

19、tected Disclosures in the United States 42Box 2.4 Immunity from liability in the Australian Public Interest Disclosure Act of 201343Box 2.5 Example of a Whistleblowing Process in the UK48Box 2.6 Australias Procedures for a Public Interest Disclosure49Box 2.7 Definition of intelligence information in

20、 Australia52Box 2.8 Whistleblowing procedures in New Zealands intelligence and security agencies53Box 2.9 Austrias Reporting Hotline 55Box 2.10 Reports by whistleblowers and the access to administrative documents law in Italy 57Box 3.1 Comprehensive protection in Korea70Box 3.2 Sanctions for retalia

21、tion in Korea74Box 3.3 Independent central and integrity agencies75Box 3.4 Remedies for public sector whistleblowers in Canada77Box 4.1 Example of a Statement to Staff Reassuring them to Raise Concerns 82Box 4.2 The United States Approach to Increasing Awareness through the WPEA84Box4.3 Change of cu

22、ltural connotations of whistleblower and whistleblowing the case of the UK85Box 4.4 “Courage when it counts” 86Box 5.1. Extracts from the OECD Principles of Corporate Governance and corresponding annotations108EXECUTIVE SUMMARYWhistleblower protection is the ultimate line of defence for safeguarding

23、 the public interest. Protecting whistleblowers promotes a culture of accountability and integrity in both public and private institutions, and encourages the reporting of misconduct, fraud and corruption. Five years after the G20 adopted Guiding Principles for Legislation on the Protection of Whist

24、leblowers, the importance of protecting whistleblowers has been heralded in several international initiatives and is gaining traction at national levels. However, much remains to be done to develop a climate of openness and integrity that enables effective whistleblower protection, which, in turn, c

25、ontributes to an environment of trust and tolerance. This report provides a detailed analysis of whistleblower protection frameworks in OECD and G20 countries and identifies areas for reform. It highlights and analyses trends identified through the 2014 OECD Public Sector Whistleblower Protection Su

26、rvey completed by 32 member countries. The analysis is supplemented by evaluation reports of the OECD Working Group on Bribery of the 41 States Parties to the OECD Anti-Bribery Convention. Increasingly, countries are developing legal frameworks to protect whistleblowers. More OECD countries have put

27、 in place dedicated whistleblower protection laws in the past five years than in the previous quarter-century; 84% of respondents to the 2014 OECD Survey have enacted a dedicated whistleblower protection law or legal provision(s) related specifically to protected reporting or prevention of retaliati

28、on against whistleblowers in the public sector. Nevertheless, these laws have usually been reactive and scandal-driven instead of forward looking. Ad hoc protection continues to be the norm, through fragmented provisions. Such provisions provide less comprehensive protection than a dedicated whistle

29、blower protection law, which often clarifies and streamlines the processes for disclosing wrongdoing and provides remedies for victims of retaliation. Furthermore, whistleblower protection laws do not always protect both public and private sector employees or the reporting of all forms of misconduct

30、, including corruption. Given that the public and private sectors are working more closely together, enacting comprehensive laws protecting employees in both sectors is more relevant than ever. While there has been progress in enacting public sector whistleblower protection laws, more is needed to p

31、rotect private sector whistleblowers. Based on evaluations by the OECD Working Group on Bribery in International Business Transactions, at least 27 Parties to the Convention do not provide effective protection to whistleblowers who report foreign bribery, in the public or private sector. In addition

32、, very few governments have taken steps to raise awareness in business and industry of the importance of encouraging reporting of wrongdoing and protecting those who report. In practice, corporate whistleblower protection frameworks fall short: 86% of companies surveyed for the OECD Business Integri

33、ty Survey had a mechanism to report suspected instances of serious corporate misconduct, but over one-third of these either did not have a written policy of protecting whistleblowers from reprisals or did not know if such a policy existed. By using open channels of communication and support, employe

34、rs and managers can give employees the confidence to discuss concerns or alleged wrongdoings and help create a workplace guided by the tenets of integrity. Upon identifying wrongdoing, an employee in either the public or private sector may be uncertain of what to do with the information or where or

35、to whom to turn, much less whether he is protected by whistleblower protection mechanisms. The many steps along the disclosure process can be daunting and vague; however, an effective and open organisational culture, promoting transparency and dialogue, can help address these concerns and may make t

36、he difference between an employee speaking out and staying silent. To facilitate whistleblowing in the public sector, some countries have adopted incentive measures including monetary rewards, and follow-up mechanisms, and many have penalties for retaliation against whistleblowers. Practice is divid

37、ed on whether reporting can be anonymous: roughly half of surveyed OECD countries provide possibilities for anonymous reporting in the public sector. Similarly, 53% of respondents to the 2015 OECD Business Integrity Survey indicated that their companys internal reporting mechanism provided for anony

38、mous reporting, whereas 38% indicated reporting was on a confidential basis. An effective whistleblower protection system also depends on communication. Informing employees about their rights and responsibilities, as well as the resources available to them, is crucial for creating an environment of

39、trust, professionalism and collegiality. Clear and effective communication can give employees the confidence to voice their concerns, and highlight the importance not only of coming forward about suspected wrongdoing, but also of defending the tenets of integrity in both the workplace and society. N

40、evertheless, such awareness campaigns are only conducted in the public sector by slightly more than half of OECD countries surveyed. Given the continuing lack of effective and comprehensive whistleblower protection laws, it is timely to review current OECD standards with respect to whistleblower pro

41、tection and consider how to revise these standards and ensure protection in both the public and private sectors. This OECD study can support the review, on a priority basis, of the legislative frameworks for protecting whistleblowers in the public and private sectors in members of the OECD and the W

42、orking Group on Bribery. Such reviews should take into account recommendations already made by the Working Group in the context of implementing the OECD Anti-Bribery Convention and related instruments. The report proposes the following next steps: Implement the 1998 Recommendation on Improving Ethic

43、al Conduct in the Public Service, which is currently being updated, developing and regularly reviewing policies, procedures, practices and institutions influencing ethical conduct in the public service. Provide guidance to public servants on their rights and obligations when exposing wrongdoing. Pro

44、mote greater implementation of the whistleblower protection provisions in the 2009 Recommendation on Further Combating Foreign Bribery in International Business Transactions (2009 Anti-Bribery Recommendation), which require countries to provide protection in both the public and private sectors, for

45、persons who report suspected foreign bribery in good faith and on reasonable grounds to the competent authorities. Encourage protected reporting mechanisms and prevention of retaliation in companies internal controls, ethics and compliance systems in line with the recommendations of the OECD 2010 Go

46、od Practice Guidance. Implement whistleblower protection broadly, covering all who carry out functions related to an organisations mandate. Clearly communicate the processes in place and raise awareness through training, newsletters, and information sessions about reporting channels and procedures t

47、o facilitate disclosures. Encourage countries to develop review mechanisms to identify data, benchmarks, and indicators relative to whistleblower protection systems and the broader integrity framework in order to evaluate effectiveness and monitor performance.GLOSSARYAnti-Corruption and Civil Rights

48、 CommissionACRCBrazilian Institute of Business EthicsIBENBritish Publicly Available SpecificationPASBritish Standards InstitutionBSICentral Office for the Prevention of CorruptionSCPCCommission on Information Technology and LibertiesCNILConsumer Affairs AgencyCAADanish Data Protection AgencyDDPAGove

49、rnment Accountability ProjectGAPInternal Revenue ServiceIRSNorways Working Environment ActNorways WEAOECD Working Group on BriberyOECD WGBOffice of the Public Sector Integrity Commissioner PSICOffice of the Special CounselOSCPublic Concern at WorkPCaW Protected Disclosures ActPDAPublic Interest Disc

50、losure Act 2013PID ActPublic Interest Disclosure ActPIDAPublic Sector Disclosure Protection ActPSDPASerious Fraud OfficeSFOSlovenias Corruption Prevention CommissionCPCSlovenias Integrity and Prevention of Corruption Act IPCAUK Serious Fraud OfficeUK SFOUnited Nations Convention against CorruptionUN

51、CACUnited Nations Office on Drugs and CrimeUNODCUnited States Sarbanes-Oxley ActSOX ActUnited States Securities and Exchange CommissionUS SECThe Protection of Public Interest Whistleblowers ActPPIW ActWhistleblower Protection Act of 1989WPAWhistleblower Protection ActJapanese WPAWhistleblower Protec

52、tion Enhancement ActWPEA118INTRODUCTIONMAINSTREAMING INTEGRITY AND OPEN ORGANISATIONAL CULTURES THROUGH DETECTION AND PROTECTIONFostering integrity and preventing corruption are essential to promoting good governance, maintaining public confidence in government and public decision-making, as well as

53、 supporting societal well-being and prosperity. Promoting integrity by ensuring transparent transactions and a clean business environment in the private sector is an important component of a countrys overall anti-corruption strategy. More efficient and competitive companies ensure healthier markets

54、and greater investor confidence. Furthermore, clean companies that do business with governments can place an effective check on both private- and public-sector corruption. At the heart of integrity in both business and government, are effective mechanisms to disclose wrongdoing without fear of repri

55、sals.If integrity is upheld at the core of an organisations inner workings, if concerns of this nature are discussed freely and fear of persecution removed, then silence in the face of wrongdoing and adversity will not remain the status quo. For the purposes of this study, whistleblower protection i

56、s defined similarly to the 2009 Anti-Bribery Recommendation as legal protection from discriminatory or disciplinary action, of employees who disclose to the competent authorities in good faith and on reasonable grounds wrongdoing of whatever kind in the context of their workplace. This study also st

57、resses the value of providing protection for internal reporting within public and private sector organisations. Unless organisations actively demonstrate that they uphold and support an effective whistleblower protection system, it is likely that employees who are aware of wrongdoing will decide not

58、 to come forward, for fear of reprisal. Not disclosing wrongdoing not only inhibits an open organisational culture, it is also detrimental to the overarching functions of an organisation, as the risk of corruption is significantly heightened in environments where reporting is not encouraged or protected. Importantly, the protection of whistleblowers is not only a way to detect but also to det