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Request to employers - limited waiver of confidentiality obligations

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.  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. Commissioner Jenkins is asking employers to show their public support for a waiver as soon as possible, in order to give people time to make their submissions. Organisations issuing a limited waiver will be listed on the Commission’s website.

Read the media release here.

Read the letter to employers below:

Letter to Employers - NDA and National Inquiry.docx

Letter to Employers - NDA and National Inquiry.pdf

Organisations that have issued a limited waiver of confidentiality obligations

The following organisations have issued a limited waiver of confidentiality obligations in non-disclosure agreements or other agreements for the purpose of allowing people to make a confidential submission to the National Inquiry. This waiver only extends to submissions made to this National Inquiry conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by a relevant agreement may also need to seek the consent of others who may be named as part of their submission.

Where an organisation has issued a waiver that includes additional terms or conditions, please click on the organisation to read the wording of the waiver.

Submissions should use pseudonyms and not real names (of individuals or employers).

The deadline for making submissions to the National Inquiry has been extended to 28 February 2019. We encourage other organisations to support the National Inquiry by issuing a limited waiver as soon as possible to give people enough time to contribute. 

Please contact the National Inquiry team if you have any questions on (02) 9284 9750 or at SH.Inquiry@humanrights.gov.au 

ANZ

Australia and New Zealand Banking Group Ltd (ANZ) will provide a limited waiver of confidentiality obligations in any non-disclosure agreements or other kinds of agreements so that people may make a confidential submission to the National Inquiry into Sexual Harassment on the following basis:

  • The submissions themselves, and any material published or communicated by or in relation to the National Inquiry, must not identify or contain the names of any persons or organisations that were involved in the matter (such as the identity of complainant, the respondent(s), any witnesses, ANZ and its related parties).
  • The limited waiver only applies to submissions in relation to sexual harassment and does not apply to other potential parts of the person’s complaint (such as allegations of other forms of inappropriate behaviour).
  • The person making the submission must first obtain the consent, to the limited waiver, of any third parties to the relevant non-disclosure agreement or other kind of agreement.
Australian National University (ANU)
  • The Australian National University will not enforce confidentiality obligations in non-disclosure or other agreements, which would otherwise prevent people from making a submission to the National Inquiry into Sexual Harassment in Australian Workplaces. This waiver only extends to submissions made to this National Inquiry conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by a relevant agreement may also need to seek consent of others who may be named as part of their submission.
BHP

As part of BHPs work to address the issue of workplace sexual harassment in Australia, BHP intends to raise awareness of the inquiry both on its website and to current employees and contractors. We will also encourage our people to participate by making a confidential submission. BHP will not enforce any confidentiality obligations in relation to such submissions.

CBH Group

Clayton Utz

Commonwealth Bank of Australia

Commonwealth Bank of Australia (CBA) will not enforce confidentiality obligations in non-disclosure or other agreements, which would otherwise prevent people from making a submission to the National Inquiry.

CBA requests that any submissions that are publicly available (or become publicly available) or any report published by the Commission will not contain any identifying information about CBA, the complainant, and any individual respondent or other entities or persons involved in the relevant matter.

If an individual who wishes to make a submission to the National Inquiry is party to a deed or other agreement with CBA and another named party, that individual should consider seeking the consent of other named party before making their submission to the National Inquiry.

Ernst & Young

Where a formal complaint of sexual harassment has been made by a current or former Ernst & Young (EY) Partner, employee or contractor, EY agrees to a limited waiver of agreed confidentiality obligations, only for the purpose of submissions made to the National Inquiry conducted by the Australian Human Rights Commission as follows;

  • The limited waiver is only for the part of a complaint which relates to sexual harassment;
  • The limited waiver allows the person to disclose the nature of the complaint and the process which was followed by EY in handling the complaint including the outcome of the complaint;
  • The limited waiver does not allow the person to disclose which individuals were involved, including but not limited to the complainants, respondents, witnesses, EY or its affiliated entities, contractors to EY, any service line, office location, or other identifying information that would identify the parties; and
  • Any person making submissions that is covered by a relevant agreement, is encouraged to contact EY to assist in facilitating any request for consent from a third party named, affected or able to be identified by the submission.
Federation University Australia

Federation University Australia supports the National Inquiry into Sexual Harassment in Australian Workplaces being conducted by the Australian Human Rights Commission.

To allow all individuals the freedom to make a submission to the National Inquiry, Federation University will not enforce confidentiality obligations in any agreement that would prevent an individual from doing so. This waiver only applies to submissions made to this National Inquiry.

Georgiou Group Pty Ltd

Herbert Smith Freehills

KPMG

The waiver has the following conditions:

  • It only applies to submissions made to the Inquiry;
  • It only applies to those circumstances of a complaint or dispute that concern allegations of sexual harassment. It does not apply to any other matters or circumstances, including matters relating to employment with KPMG or the business of KPMG or its clients; and
  • Any submission made to the Inquiry must not contain the names or other identifying information of any individuals or entities, including KPMG.

Macquarie University

Medibank

NSW Government Sector

[Department/Agency] will not enforce confidentiality obligations in any non-disclosure or other agreements, which would otherwise prevent people from making a confidential submission to the National Inquiry into Sexual Harassment in Australian Workplaces. This waiver only extends to confidential submissions made about a sexual harassment matter or incident to the National Inquiry conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by any relevant agreement may also need to seek the consent of others who may be named as part of their submission.

This statement does not affect any statutory duties of confidentiality or secrecy, or other confidentiality obligations which may apply to a person making a submission, including in relation to not disclosing any confidential or secret information obtained in the course of government employment.

Queensland Public Service
For the purpose of making submissions to the Australian Human Rights Commission (AHRC) in relation to the National Inquiry into Sexual Harassment in Australian Workplaces (National Inquiry), the State of Queensland (including its current and former employees, servants and agents) will not enforce confidentiality obligations in non-disclosure or other agreements (NDAs) with current and former State employees, other than in relation to the following information:
  1. The names and details of the parties to the deed;
  2. The names and details of any witnesses to the alleged sexual harassment;
  3. Any information that could identify the parties or the witnesses;
  4. The name of the employer of the alleged perpetrator and alleged victim; and
  5. Any information that could identify the employer of the alleged perpetrator and alleged victim. For example, if the employer is the Department of Education, and the alleged sexual harassment occurred at a school, any disclosure should not include a reference to the name of the school.
Just to be clear, the State of Queensland (including its current and former employees, servants and agents) does not waive the confidentiality obligations in NDAs in relation to information identified in paragraphs (a) to (e) above, and it is not to be disclosed. This limited waiver only extends to written and oral submissions made to AHRC as part of the National Inquiry on or before 31 January 2019, or later date announced by the AHRC as the closing date for submissions to the Inquiry.

OMD Australia

Rio Tinto

Telstra
Where complaints of sexual harassment have been made by a Telstra employee or a former employee, Telstra will agree to a limited waiver of agreed confidentiality obligations:
  • In relation to submissions made to the National Inquiry conducted by the Australian Human Rights Commission; 
  • Relating only to those parts of a complaint that are about sexual harassment (note: this means that the waiver would not extend to complaints that are not about sexual harassment, for example other grounds of discrimination);
  • Subject to the submission not containing the names of any individuals involved, including complainants, respondents, witnesses, Telstra or its subsidiaries, contractors to Telstra, any business unit specific information, or other identifying information; and
  • Consent being obtained from any third parties to an agreement before a submission is made, if the complainant is aware that terms regarding confidentiality have been agreed with other parties (note: a complainant may at their own discretion wish to seek Telstra’s assistance in helping to make contact with other parties to seek their consent. Telstra is unable to guarantee that other parties will give their consent).

University of Newcastle

VicHealth

Water Corporation

Western Power

Western Power will not enforce confidentiality obligations in non-disclosure or other agreements which would otherwise prevent people from making a submission to the National Inquiry into Sexual Harassment in Australian Workplaces. This waiver only extends to confidential submissions made to this National Inquiry conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by a relevant agreement may also need to seek the consent of others who may be named as part of their submission.

Western Sydney University

Western Sydney University will not enforce confidentiality obligations in non-disclosure or other agreements that would otherwise prevent people from making a submission to the National Inquiry into Sexual Harassment in Australian Workplaces. This waiver only extends to confidential submissions made to the National Inquiry into Sexual Harassment in Australian Workplaces conducted by the Australian Human Rights Commission. Individuals making a submission on matters covered by a relevant agreement may also need to seek the consent of others who may be named as part of their submission.