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How non-disclosure agreements (NDAs) are propping up a culture of sexual harassment in the workplace, and why the Australian Government must do more.

By Maree Pulis




When sexual harassment in the Australian workplace occurs, non-disclosure agreements (‘NDAs’) have been used as a tool to resolve disputes between employers and their employees. However, with the help of the international #MeToo and #TimesUp political movements, we have gained an awareness that NDAs are silencing victims and enabling the protection of perpetrators, the cover up of serious misconduct and criminal offences. This results in perpetrators becoming repeat offenders in the workplace, creating health and safety risks which disproportionately affect women, perpetuating a gender-based issue. 


In 2020, the Australian Human Rights Commission (‘AHRC’) released the Respect@Work Report with the Australian Government announcing in 2022 that they would be implementing all 55 of its recommendations. Despite research calling for the regulation of NDAs to protect people from sexual harassment, the AHRC’s recommendation specific to NDAs was vague and ultimately provided no specific guidance on how the Government should legally respond.


In this article, I will discuss the findings of the AHRC Respect@Work Report in relation to NDAs; if Australian workplaces are tackling sexual harassment successfully and reducing the use of NDAs; and what obligations the Australian Government has to evoke change.


Respect@Work Report


Sexual harassment can constitute anything from unwelcome touching, kissing or hugging, intrusive questions about one’s physical appearance to sexually explicit phone calls, texts and physical assault. In 2018, it was found that 1 in 3 people had been sexually harassed in the workplace, which led  the Australian Government to fund the National Inquiry into Sexual Harassment in Australian workplaces, with the ultimate release of the Respect@Work Report. 


The issues related to NDAs (confidentiality clauses used to settle sexual harassment cases) were raised during AHRC’s investigation. A significant problem was highlighted when the AHRC could not speak with and investigate any victim of workplace sexual harassment who had signed a confidentiality agreement. Research within and outside this report has found that restrictive NDAs have serious psychological, emotional and financial cost for victims  and can  prevent the complainant seeking support from their family, friends or  medical professionals.


Despite this, the Respect@Work Report found some benefits to the use of NDAs, they are:

  • An alternative to time consuming and confronting litigation in the court system

  • Provides complainants, employers, respondents and other parties with privacy to protect their reputation

  • Provides the complainant with a better chance of reaching a settlement, avoiding the financial and emotional toll of going to court

  • Provides incentive for the employer to settle a legal claim

  • Provides a definitive resolution to the matter


However, the AHRC found disadvantages to NDAs significantly impact the workforce and can increase the prevalence sexual harassment:

  • NDAs contribute to a culture of silence

  • Disempowers victims

  • Covers up unlawful conduct

  • Facilitates repeat offending

  • Employers use NDAs to protect their reputation and business, at the expense of the victim’s wellbeing


Recognising the potential misuse of NDAs the AHRC made the following recommendation and subsequently provided a guideline for legal practitioners to encourage a victim-centred approach:


Recommendation 38 

The Commission, in conjunction with the Workplace Sexual Harassment Council, develop a practice note or guideline that identifies best practice principles for the use of NDAs in workplace sexual harassment matters to inform the development of regulation on NDAs.


Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints.

  1. Consider the need for a confidentiality clause on a case-by-case basis.

  2. The scope and duration of the confidentiality clause should be as limited as possible.

  3. Confidentiality clauses should not prevent organisations from responding to systemic issues and providing a safer workplace.

  4. All clauses in a settlement agreement should be clear, fair, in plain English and, where necessary, translated and/or interpreted.

  5. The person who made the allegation should have access to independent support or advice to ensure they fully understand the meaning and impact of the settlement agreement, including any confidentiality clause.

  6. Negotiations about the terms of a settlement agreement should ensure as far as possible the wellbeing and safety of the person who made the allegation, and be trauma-informed, culturally sensitive and intersectional.


Workplace sexual harassment and NDA trends


To date, these guidelines have not been utilised effectively in dispute resolution. In fact, research from the Redfern Legal Centre and Human Rights Law Centre in the ‘Let’s talk about confidentiality Report’ found that strict NDAs remain a default resolution for sexual harassment cases in Australia. The report found that 75% of legal practitioners who worked in sexual harassment matters had never settled a matter without a strict NDA.


The proportion of women and men who have experienced sexual harassment in the workplace has increased over time, including since the release of the Respect@Work Report (see Figure 1 and 2). These trends strengthen the argument for regulation of NDAs by the Government.














Figure 1: Women experiencing sexual assault in the workplace














Figure 2: Men experiencing sexual assault in the workplace


Conclusion


It is incumbent on Australian Governments to regulate the use of NDAs through comprehensive legislation to ensure victims of sexual harassment in the workplace are supported and incidence of abuse dramatically decrease. This has proven to be a viable option overseas, where Ireland, Canada (Prince Edward Island) and various states in the US have legislated to end the use of NDAs completely, with exceptions to allow their use when it is requested by the complainant.


The Redfern Legal and Human Rights Law Centres have published model NDA clauses to assist legal practitioners dealing with sexual harassment disputes, who still use NDAs, to ensure a victim centred approach. You can find a list of model confidentiality clauses here. It has also been recommended by the AHRC and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) that these confidentiality clauses be drafted in plain English to assist complainants and for complainants to be provided with independent support or advice.,


The Victorian Trades Hall Council is currently running a campaign to end the misuse of NDAs. They have created model clauses that you can present to your employer when bargaining for a new Enterprise Bargaining Agreement, which can be accessed here. You can learn more and support their campaign by signing their petition here



References


Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 2020) 557 (‘Respect@Work Report’).


Madeleine Causbrook, ‘The Road to Reform Lessons from International Jurisdictions for Legislative Regulation of Non-Disclosure Agreements in Workplace Sexual Harassment Matters in Australia’ (2023) 36(1) Australian Journal of Labour Law 35.


Alex Crockett, Isabella Armao and Justine Sammut, ‘Piercing the secrecy veil and restricting NDA use in sexual harassment claims in Australia: Victoria leads the way’ (2022) 27(7/8) Employment Law Bulletin 78.


Australian Human Rights Commission, Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints (Guideline, 2022) 5 (‘Guidelines on the Use of Confidentiality Clauses’).


Australian Human Rights Commission Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces (Report, 2018) 8.


Regina Featherstone and Sharmilla Bargon, Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report (Report, 6 March 2024) 83 (‘Let’s talk about confidentiality’).


Sophie Kesteven and Damien Carrick, ‘Why strict non-disclosure agreements in sexual harassment cases shouldn't be the only option’, ABC News (online, 21 March 2024) <https://www.abc.net.au/news/2024-03-21/ndas-for-the-law-report/103580610>.


Australian Human Rights Commission, Time for respect: Fifth national survey on sexual harassment in Australian workplaces (Report, November 2022) 203.


 



Maree Pulis is a first year Juris Doctor student at Monash University, with over 10 years’ experience as an Advanced Life Support Paramedic then an Ambulance Manager later in her Paramedic career.

 

Maree’s growing passion for workers’ rights prompted her decision for a career change. A proud trade unionist with experience as a Union Delegate and Organiser, she has represented Ambulance Union members at Victorian Parliament advocating for change in the workplace.

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