Workplace Sexual Harassment Inquiry - Call for limited waiver of NDAs

Former Australian Sex Discrimination Commissioner, Kate Jenkins, is calling on Australian employers to issue a limited waiver of confidentiality obligations in non-disclosure agreements (NDAs) for the purpose of allowing people to make a confidential submission to the National Inquiry into Workplace Sexual Harassment (the National Inquiry).

The National Inquiry, supported by Government, is examining the experiences of workplace sexual harassment, its causes, impacts, the effectiveness of the legal framework, and best practice responses.

NDA arrangements are commonly entered into as part of a settlement of a sexual harassment claim. They generally prohibit all parties to the agreement from talking about the claim to anyone. They are found across industries and employers big and small.

Former Commissioner Jenkins said the National Inquiry is not investigating or making findings about individual allegations of sexual harassment.

“We want to hear about individual experiences to inform our understanding of the systemic issues.

“In particular we want to learn about the operation of NDAs in practice, including general terms and conditions; and whether the use of NDAs in specific cases has been advantageous or otherwise from the perspective of all parties to the agreement. It is important that we hear from both employers and employees about the positives and negatives of this practice.”

This week, the Commissioner is contacting employers and employer groups to ask them to sign limited waivers to this end.

This step has previously been taken in response to public inquiries of national importance. For example, several banks and other financial institutions waived relevant NDAs for the purposes of the Financial Services Royal Commission.

Submissions to the National Inquiry will be treated as confidential unless specifically requested to be public. Where a person asks for their submission to be made public, any identifiable information will be redacted prior to publication.

Commissioner Jenkins is asking employers to show their public support for a waiver as soon as possible (and no later than 30 November 2018), in order to give people time to make their submissions. Organisations issuing a limited waiver will be listed on the Commission’s website.

Submissions for the National Inquiry closed on 31 January 2019.