Cap. 527 Art. 2Definitions.

(1) In this Act, unless the context otherwise requires:

"authority" means the entities prescribed to receive external disclosures, as listed in the First Schedule; "bribery" means any conduct in violation of articles 112 or 115 or of article 121 insofar as it extends the application of articles 112 and 115 of the Criminal Code;

"contract of service" means:

(i) an agreement whether oral or in writing, in any form, whereby a person binds himself to render service to or to do work for an employer, in return for remuneration; and

(ii) an agreement, even if implied, whereby a person agrees to render services for or at the request of a voluntary organisation without remuneration;

"corrupt practices" has the same meaning as is assigned to it by article 6 of the Permanent Commission against Corruption Act;

"detrimental action" includes:

(a) action causing injury, loss or damage; and, or

(b) victimisation, intimidation or harassment; and, or

(c) occupational detriment; and, or

(d) prosecution under article 101 of the Criminal Code relating to calumnious accusations and, or;

(e) civil or criminal proceedings or disciplinary proceedings; "disciplined force" has the same meaning as assigned to it in Article 47(1) of the Constitution; "disclose" or "to disclose" means the oral or written

*see article 1(2) as originally enacted, and Legal Notice 235 of 2013. communication of information on improper practice;

"employee" means:

(a) any person who has entered into or works under a contract of service with an employer and includes a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services; or

(b) any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity to which an obligation of professional secrecy applies in terms of the Professional Secrecy Act when such work or service is not regulated by a specific contract of service and "outworker" means a person to whom articles, materials or services of any nature are given out by an employer for the performance of any type of work or service where such work or service is to be carried out either in the home of the outworker or in some other premises not being under the control and management of that other person; or

(c) any person in employment in the public administration, including as a member of a disciplined force;

(d) any former employee;

(e) any person who is or was seconded to an employer; or

(f) any volunteer in terms of article 2(1) of the Voluntary Organisations Act even when such work or service is not regulated by a specific contract of service;

(g) any candidate for employment only where information concerning improper practices has been acquired during the recruitment process or other pre-contractual negotiations;

(h) shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, and paid or unpaid trainees;

"employer" means any natural person, legal organisation or statutory body whether forming part of the public administration or the private sector who:

(a) enters into a contract of service with an employee; or

(b) who employs or engages or permits any other person in any manner to assist in the carrying on or conducting of his business; or

(c) who seeks to employ other persons, and shall include a voluntary organisation in relation to volunteers who render services to such voluntary organisation on a voluntary basis or otherwise; "external disclosure" is a disclosure made in accordance with Section 3 of Part III; "External Whistleblowing Disclosure Unit" means with respect to the public administration, such section, body or unit as may be established to carry out the functions designated in article 17;

"facilitator" means a person who assists a reporting person in the reporting process in a work-related context, and whose assistance should be confidential;

"feedback" means the provision to the reporting person of information on the action envisaged or taken as follow-up and on the grounds for such follow-up;

"follow-up" means any action taken by the recipient of a disclosure or any competent authority, to assess the accuracy of the allegations made in the report and, where relevant, to address the improper practice reported, including through actions such as an internal enquiry, an investigation, prosecution, an action for recovery of funds, or the closure of the procedure; "guidelines" means the set of rules issued by an authority, from time to time for the further implementation of the provisions of this Act, and any regulations made hereunder;

"improper practice" means an action or a series of actions whereby:

(a) a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; or

(b) the health or safety of any individual has been, is being or is likely to be endangered; or

(c) the environment has been, is being or is likely to be damaged; or

(d) a corrupt practice has occurred or is likely to occur or to have occurred; or

(e) a criminal offence has been committed, is being committed or is likely to be committed; or

(f) a miscarriage of justice has occurred, is occurring or is likely to occur; or

(g) bribery has occurred or is likely to occur or to have occurred; or

(h) a person has failed, is failing or is likely to fail to comply with any legal obligation on public procurement to which he is subject; or

(i) a person has failed, is failing or is likely to fail to comply with laws on financial services, products and markets, and prevention of money laundering and terrorist financing; or

(j) a person has failed, is failing or is likely to fail to comply with product safety and compliance law; or

(k) a person has failed, is failing or is likely to fail in ensuring transport safety; or

(l) a person has failed, is failing or is likely to fail in ensuring radiation protection and nuclear safety; or

(m) a person has failed, is failing or likely to fail in ensuring a food and feed safety, animal health and welfare; or

(n) a person has failed, is failing or is likely to fail to comply with any legal obligation on consumer protection to which he is subject; or

(o) a person has failed, is failing or is likely to fail to comply with any legal obligation on protection of privacy and personal data, and security of network and information systems to which he is subject; or

(p) a breach affecting the financial interests of the European Union as referred to in Article 325 of the Treaty on the Functioning of the European Union

(TFEU) and further specified in relevant European Union measures has occurred or is likely to occur or to have occurred; or

(q) a breach relating to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union (TFEU), including breaches of European Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law has occurred or is likely to occur or to have occurred; or

(r) information tending to show any matter falling within any one (1) of the preceding paragraphs has been, is being or is likely to be deliberately concealed: Provided that, in the interpretation of this definition due account shall be given to the de minimis rule so that very minor or trivial matters shall not fall under the provisions of this Act;

"information on improper practices" means information, including reasonable suspicions, about actual or potential improper practices, which occurred or are very likely to occur in the organisation in which the reporting person works or has worked or in another organisation with which the reporting person is or was in contact through his work, and about attempts to conceal such breaches;

"internal disclosure" is a disclosure made in accordance with Section 2 of Part III; "member", in relation to a disciplined force, includes any person who under the law regulating the discipline of that force, is subject to that discipline;

"Minister" means the Minister responsible for justice;

"occupational detriment", means any direct or indirect act or omission which occurs in a work related context, which is prompted by internal or external disclosures or by public disclosure, and which causes or may cause unjustified detriment to the whistleblower and may include:

(a) suspension, lay-off, dismissal or equivalent measures;

(b) demotion or withholding of promotion;

(c) transfer of duties, change of location of place of work, reduction in wages, change in working hours;

(d) withholding of training;

(e) a negative performance assessment or employment reference;

(f) imposition or administering of any disciplinary measure, reprimand or other penalty, including a financial penalty;

(g) coercion, intimidation, harassment or ostracism;

(h) discrimination, disadvantageous or unfair treatment;

(i) failure to convert a temporary employment contract into a permanent one, where the worker had legitimate expectations that he would be offered permanent employment;

(j) failure to renew, or early termination of, a temporary employment contract;

(k) harm, including to the person's reputation, particularly in social media, or financial loss, including loss of business and loss of income;

(l) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that this person will not, in the future, find employment in the sector or industry;

(m) early termination or cancellation of a contract for goods or services;

(n) cancellation of a licence or permit;

(o) psychiatric or medical referrals;

(p) being subjected to any disciplinary action including for breach of ethics or confidentiality;

(q) being subjected to a term or condition of employment or retirement which is altered or kept altered to his disadvantage:

Provided that, this shall not apply where the action is taken where the direct or indirect act or omission is administratively or commercially justifiable for organizational reasons; "organisation" means any legal entity, whether having legal personality or not;

"person" means a natural person;

"person concerned" means a natural or legal person who is referred to in the report or public disclosure as a person to whom the improper practice is attributed or with whom that person is associated;

"protected disclosure" means an internal disclosure or an external disclosure of information, made in writing or in any format which may be prescribed;

"public administration" has the meaning as is assigned to it by article 2(1) of the Public Administration Act;

""public disclosure" means a disclosure made in accordance with Section 4 of Part III; and

"statutory body" means any corporation or other body corporate established by law; "voluntary organisation" has the same meaning as is assigned to it by article 2(1) of the Voluntary Organisations Act irrespective of whether such organisation is enrolled in terms of the said Act; "whistleblower" means any employee who makes a disclosure to a whistleblowing reporting officer or a whistleblowing reports unit, as the case may be, whether it qualifies as a protected disclosure or not under this Act;

"whistleblowing reporting officer" means such officer within an employer charged with carrying out the functions designated by article 12; "whistleblowing reports unit" means such officer, office or section within an authority to carry out the functions designated by article 17 and, with respect to the public administration, the External Whistleblowing Disclosure Unit;

"work-related context" means current or past work activities in the public or private sector through which, irrespective of the nature of those activities, persons acquire information on improper practices and within which those persons may suffer retaliation if they reported such information.

(2) Where this Act refers to a matter which may be prescribed, unless this Act expressly designates the person authorised and the manner thereof, such matter may be prescribed by the Minister through regulations or by the authority through guidelines or by any one or all of them as may be determined, and in the case of any conflict, a regulation by the Minister shall prevail over a guideline.

(3) This Act shall not apply to members of a disciplined force, to members of the Security Service or to persons employed in the foreign, consular or diplomatic service of the Government until the Minister makes regulations regulating the manner in which the provisions of this Act will apply in their regard, and in so doing, the Minister may make not applicable or modify the provisions of this Act as necessary for the purpose of the protection of national security, defence, intelligence, public order and the international relations of the State.

(4) Where specific rules on the reporting of breaches are provided for in the sector-specific laws listed in the Third Schedule, those laws shall apply. The provisions of this Act shall be applicable to the extent that a matter is not mandatorily regulated in those laws.

(5) This Act shall not affect the exercise by workers of their rights to consult their representatives or trade unions, and on protection against any unjustified detrimental action prompted by such consultations as well as on the autonomy of the social partners and their right to enter into collective agreements. This is without prejudice to the level of protection granted by this Act.