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Calls For Workers To Be Released From Non-disclosure Agreements

Calls for workers to be released from non-disclosure agreements

Workers should be released from sexual harassment non-disclosure agreements, to allow them to give evidence to a national inquiry.

The call comes from Sex Discrimination Commissioner Kate Jenkins, who is struggling to find victims willing to give evidence.

As a result, she has written to 120 chief executives asking for special waivers from the agreements.

So far, just 20 have agreed.

Non-disclosure agreements standard practice

Industrial advocate Miles Heffernan says non-disclosure agreements form part of most sexual harassment settlements.

“A company will agree to settle a claim to avoid the matter going to court and becoming public,” he said.

“However, in return for a compensation payment, the company will insist the victim of the harassment sign a non-disclosure agreement.

“The agreement effectively gags them from speaking publicly about the matter, or criticising the people and company involved.

“Victims are not allowed to give evidence to the current inquiry, unless given special permission.”

NDAs a ‘secondary form of victimisation’

Professor Judith Bessant from RMIT’s School of Global, Urban and Social Studies recently wrote an opinion piece for Fairfax.

She describes non-disclosure agreements as a “secondary form of victimisation”.

Furthermore, she says they “can compound the damage done to the person harassed or harmed by bullying, adverse action or sexual harassment, adding new layers of harm to people’s health, reputation, career advancement or capacity to get another job.”

Professor Bessant writes about a power imbalance between an employee subjected to harassment, and a cashed-up, lawyered-up, big employer that demand confidentiality agreements.

“By the time most workers who have had their complaint heard and upheld, they are already damaged by processes that involve sheer exhaustion and the effects of chronic stress and fear, all damaging their physical and mental health.

“This often makes contesting requirements by their workplace for a confidentiality agreement too much: complainants just want the whole thing over and done with.”

As a result, Professor Bessant suggests non-disclosure agreements prevent the community from understanding and addressing the issue of sexual harassment.

“Confidentiality agreements also mean there little or no learning can happen.

“As a result, there will be no real attempt on the part of the workplace to recognise what happened and to resolve the matter/s in ways that restore what the complainant has lost.

“Confidential agreements therefore aid institutional amnesia or preference not to know or tell that assumes “things can go on as usual”.”

Companies should cooperate with inquiry

Mr Heffernan therefore joined the calls for corporate Australia to cooperate with the inquiry.

“Companies must allow current and former employees to disclose, in a confidential setting, their sexual harassment experience,” he said.

“Their contribution to the inquiry will help develop better ways of dealing with this problem, and hopefully preventing it from happening in the future, as a result.”


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