Meant to assist employers, unions, employees, legal practitioners and mediators in settlement agreements
New guidelines on the use of confidentiality clauses in settling workplace sexual harassment cases are now accessible to employers on the Respect@Work website.
They provide principles to guide the consideration of the use of a confidentiality clause in a settlement agreement.
“The principles provide that confidentiality clauses should be clear, fair, in plain English and translated or interpreted where necessary, considered on a case-by-case basis and limited in scope and duration. They also provide that the person who made the allegation should have access to independent support and advice and that negotiations about the terms of a settlement agreement should be trauma informed, culturally sensitive and intersectional,” says the site.
“The guidelines can assist a person who made the allegation of sexual harassment, as well as employers, alleged harassers, employer organisations, unions, legal practitioners, mediators, insurers and anyone else involved in the process of resolving a workplace sexual harassment complaint.”
Recently, Australia passed legislation that underscores the responsibilities of employers in preventing sexual harassment in workplaces.
National inquiry
The use of non-disclosure agreements (NDAs) in sexual harassment cases was one of the issues raised in the Respect@Work: Sexual Harassment National Inquiry Report released in 2020.
It was a "topical and challenging issue that arose during the Inquiry," according to the report, after finding that only 39 organisations agreed to temporarily waive confidentiality obligations in their NDAs so people could make a confidential submission to the Inquiry.
"Confidentiality clauses can cause further harm to victims of workplace sexual harassment and should not be a standard part of settlements. Instead, they should be considered on a case-by-case basis," said National Sex Discrimination Commissioner Kate Jenkins, who also launched the report.
The landmark report suggested the development of a "practice note or guideline that identifies best practice principles to inform the development of regulation on the use of NDAs in workplace sexual harassment matters."
The publication of the guidelines on the Respect@Work website fulfills this recommendation.
"These guidelines set out the considerations that need to be weighed in deciding the appropriateness of confidentiality clauses in workplace sexual harassment settlements," Jenkins said.
Good practice framework also launched
Guidance on preventing and responding to workplace sexual harassment was also launched on the Respect@Work website.
The guidance, called "Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment," aims to help employers in stopping incidents of sexual harassment before they even occur.
"Many employers already provide supportive responses when harassment occurs, but that is not enough – all employers also have a responsibility to actively prevent harassment happening in the first place. The good practice indicators will support employers in those actions," Jenkins said.
The development of the indicators also satisfies one of the recommendations of the 2020 report, which called for its publication for "measuring and monitoring sexual harassment."
Both guidelines were developed by the federal Attorney General's department in consultation with the Respect@Work Council and the AHRC.
