That Secret Confidentiality Non-Disclosure thingo

[Spriteah]

Ok Guys and Gals, mostly directed to RAAus members or wanna bees. The attached is the agreement all board members are asked to sign. It took me a while to get the majority to approve the release. Hope it answers some questions and dispels many myths.

 

Regards,

 

Jim Tatlock

 

RAAus Treasurer

 

Confidentiality Agreement.pdf

 

Confidentiality Agreement.pdf

 

Confidentiality Agreement.pdf

[Head in the clouds]

Thanks Jim.

 

Under the terms of this, are volunteer Board members considered to be "employed" by RAA?

 

And what matters are "advised as (being of) the type of matters that fall within the definition of ‘confidential’ "?

 

.

 

 

[Spriteah]

HITC have already mentioned them in other threads. Board are employees for the sake of the contact. Items such as : Contract negotiations, disciplinary matters, on-going investigations.

 

Regards,

 

Jim Tatlock.

 

 

[DonRamsay]

Thanks Jim.

 

Yet again Jim has done what Board Members get elected to do - communicate (both ways) with RA-Aus Members.

 

Can't say that I admire the document's wording but the simple intent is fairly clear. There is nothing special or tricky about it. The document may or may not be enforceable at law but it simply doesn't matter. Why? Because Directors and people in positions of trust are required to maintain that trust. It would be a breach of a Directors Duty to use confidential information to their own advantage or disclose it to others without good cause. I believe that a Confidentiality Agreement is unnecessary for Directors. If anything, it is an aide memoire to a Director, reminding him/her of their duty. It removes the "I didn't know that excuse" which simply wouldn't work anyway.

 

In 2011 there was an attempt to get Board Members to sign a Confidentiality Agreement that went way beyond anything remotely reasonable as a part of the "Code of Conduct". Enough Board Members, including myself, refused to sign it and the nonsense condition was deleted.

 

If you don't understand "reasonable confidentiality" then you should not seek nor accept nomination for a responsible position like Board Member of any organisation.

 

 

[Guest Maj Millard]

So there you have it folks......that's what I signed recently, fairly simple and straight foward. And by comparison I can tell you a whole lot simpler than the last one I singed as an employee of Air Whitsunday Seaplanes...........Maj.....

 

 

[dodo]

Perhaps I am a bit slow, but what is the definition of confidential, and who decides what is confidential?

 

I am have signed so many confidentiality agreements over the years...but I haven't met one before which doesn't give SOME indication of what is confidential.

 

dodo

 

 

[coljones]

Maj, I presume that at Air Whitsunday Seaplanes you were a wage slave not the owner, more or less what you are when you become a board member.

 

 

[DonRamsay]

. . . what is the definition of confidential, and who decides what is confidential?

The Courts if it gets that far. An experienced, reasonable person is the test the Courts use and the same one that should tell you what is confidential. It has to do with unreasonable harm being caused by unwarranted disclosure. It can also relate to a person gaining an advantage by using confidential information not available to others - e.g. insider trading.

 

I am have signed so many confidentiality agreements over the years...but I haven't met one before which doesn't give SOME indication of what is confidential.

It is a matter for judgement - just hope that the person doing the judging is you and not some old codger wearing a white wig.

 

Don

 

 

[Guest Maj Millard]

Maj, I presume that at Air Whitsunday Seaplanes you were a wage slave not the owner, more or less what you are when you become a board member.

Col, a Board-member is not a wage slave, because he doesn't get paid....people easily forget its all a volenteers position.........Maj....

 

 

[Guest Andys@coffs]

A minor correction from my perspective....... I don't at all forget its a voluntary position, but as an excuse for inaction, poor governance and ignorance of responsibilities being a volunteer doesn't cut it for me, and hasn't cut it when tested in courts.......By all means take on the role if you can, but having taken it on then deliver as the legislators of the incorporated associations Act intended.

 

 

[coljones]

Col, a Board-member is not a wage slave, because he doesn't get paid....people easily forget its all a volenteers position.........Maj....

You are more or less the owner when you join the board, not a wage slave for the company - I am glad we agree.

 

 

[Admin]

Jim, Thanks for posting that however 2 things if I may:

 

1. It is a LOT different than the one that they tried to make me sign

 

2. It in itself is nothing but just a piece of paper as it refers to so many other elements that have not been disclosed such as "definition" of confidential, what the "Policy" is that it refers to etc etc etc. It basically says you will abide by the law however it doesn't disclose what the law is for any of us to make any comment.

 

I think what has to be realised is that a person is there to help and protect the RAAus to the best of their ability and they are not there to sabotage their own Association so just basic common decency by mature people trying to do their best for their own Association is what should be considered. However I do understand that their is a fine line plus what one person thinks should be communicated to the members may be different to another.

 

When I was on the board I tried to bring in a closing statement on every subject that is discussed by the board and that was simply an agreement of "Confidential" or "Non-Confidential" which would have made the clarification extremely clear for everyone on whether something could be communicated to the members or not...simple, yes but accepted by the others at the time, No.

 

The other thing I argued at the time was that a member could sit in at any board meeting and hear everything with the exception of in-camera discussions and could disclose that to anyone they like yet a board member was not allowed to so on one hand a board member was an Association member but on the other hand he was a sanctioned normal member...it meant that by signing the confidentiality agreement that was in force those years ago meant you relinquished your rights as an ordinary member. They were the "X" old days though

 

As always though, thanks Jim

 

 

[kaz3g]

You are more or less the owner when you join the board, not a wage slave for the company - I am glad we agree.

The owner is the Incorporated Association. Board members "work" for the IA and have all the ethical and fiduciary responsibilities that go with it, especially LOYALTY.

 

In my view, the Confidentiality Agreement is unenforceable as a contract because it doesn't meet the definition of one...offer, acceptance, intention to create legal relations and VALUABLE CONSIDERATION.

 

But a Board member who disclosed information which was clearly to be regarded as confidential knowing or ought to have known that its disclosure would be adverse to the interests of the IA would be in breach of his/her fiduciary duty and liable to being dealt with by the Courts. The damage done would have to be calculated to arrive at a quantum of compensation.

 

It could certainly be argued that such a breach ought lead to dismissal.

 

Kaz

 

(Not shouting, just trying to emphasise the important bits)

 

 

[dodo]

The problem comes in practical use, not in later legal action (so far).

 

Some things are obviously confidential (staffing issues, personal information, etc.)

 

Everything else should only be confidential by general agreement or for a very good - and clearly stated - reason.

 

For example, why is the draft Ops manual "confidential"? It may be impractical to send out every revision, but not one has been provided to members. And if you ask why...you don't get an answer!

 

Why was the confidentiality document confidential? That seems ridiculous to me.

 

It looks like everything is confidential, unless explicitly labelled "for release to members".

 

dodo

 

 

[Guest Andys@coffs]

I agree with kaz, it's a non binding agreement not a contract, it is a poor effort at trying to deal with fiduciary responsibilities where we may very we'll be better served in educating our reps to those realities rather than this poor attempt.

 

I have said numerous times that the Australian institute of company directors has a not for profit education scheme that we as members should put our reps through, unless they are already members of that organisation.

 

Doing that IMHO would cost much less than "Dad and Dave" approaches we have seen previously and it's a skill set that will benefit the reps themselves in non RAAus life. Win win it's called and is the basis of every successful contract. Any other way and one party has to ask why would we?

 

Andy

 

 

[farri]

So there you have it folks......that's what I signed recently, fairly simple and straight foward............Maj.....

Ross, is it realy that simple and straight forward?..... The way I see it! The RA-Aus is an incorporated association required to have a constitution and to work within the requirements of that constitution.

 

I`ve been through the constitution a couple of times and I can`t find anything that refers to confidentiality agreements. If I`ve missed it, please point me to it! If I havn`t missed anything, my question to you is! "What gives the board the legal right to make board members sign a confidentiality agreement?"

 

Frank.

 

 

[kaz3g]

Ross, is it realy that simple and straight forward?..... The way I see it! The RA-Aus is an incorporated association required to have a constitution and to work within the requirements of that constitution.I`ve been through the constitution a couple of times and I can`t find anything that refers to confidentiality agreements. If I`ve missed it, please point me to it! If I havn`t missed anything, my question to you is! "What gives the board the legal right to make board members sign a confidentiality agreement?"

 

Frank.

They take a vote. They can set their own internal rules applicable to employees and they could even try to incorporate that agreement in employment contracts for paid employees, but it only has moral effect on a Board member.

 

Kaz

 

 

[Guest Andys@coffs]

Also bear in mind that the constitution does identify some high level requirements but it and the incorporated associations Act aren't the only legislative mandates our managers and employees must follow. As an employer we are like all other employers obligated to adhere to employment legislation etc.

 

it would be a brave person who in today's climate would suggest our entire privacy obligations are those espoused in the constitution..... In fact I would go so far to suggest it may be worth looking at what we have in their to ensure we are not trampling other recent legislative requirements....to me it seems we get new additional privacy red tape about every 6months it seems........as an IT guy we are deeply impacted with most changes......

 

Andy

 

 

[DonRamsay]

If RA-Aus felt the need for a binding confidentiality agreement , and I'm on record as saying we don't need one, then it would have to take the form of a Deed. The reason we don't need one is well explained by Kaz. There are plenty of very nasty legal ramifications for anyone who breaches reasonable confidentiality.

 

On the nature of "confidentiality" one thing to bear in mind is that the need for confidentiality expires over time. Something that may be critically confidential today may cease to be at all confidential tomorrow. It is an extremely rare thing that has to remain confidential forever, e.g. formula for Coca-Cola

 

Board room discussions should remain confidential to the Board indefinitely but the outcome of those discussions including who voted in favour and who against is information vital to the proper working of a democratic body like RA-Aus.

 

During the development stage of the Ops Manual, the Board may have wanted to keep some aspects confidential from the old enemy (CASA) until they have finally decided it is worth trying it on with CASA. However, once they have a draft document that they are confident to pass to CASA for their approval, it should first be made available to all members for comment. Once CASA gives their consent to the Ops (or Tech) Manual it is a massive job to get them to change their mind.

 

Incidentally, nothing is confidential between RA-Aus and an individual member according to Rule 36 of our Constitution. Having seen the confidential information though the member then has a responsibility to maintain reasonable confidentiality.

 

Farri,

 

The Board is empowered by our Constitution (Rule 20iv) to " . . . subject to these Rules, make, amend or delete By-laws for conducting its own proceedings and general management of the Association's affairs." Requiring a Confidentiality Agreement (or Deed) fits with that power, however ill advised.

 

 

[farri]

Farri, The Board is empowered by our Constitution (Rule 20iv) to " . . . subject to these Rules, make, amend or delete By-laws for conducting its own proceedings and general management of the Association's affairs." Requiring a Confidentiality Agreement (or Deed) fits with that power, however ill advised.

Thank you Don! For those who are interested, it`s Rule 20vi not 20iv.... It appears to me,this rule more or less gives the board the power to do as they wish,within the constitution!... Full stop.

 

I find it interesting that Kaz has said in post #13, "In my view, the Confidentiality Agreement is unenforceable as a contract because it doesn't meet the definition of one...offer, acceptance, intention to create legal relations and VALUABLE CONSIDERATION". In post #17 "but it only has moral effect on a Board member"....... Following from that, I think the Confidentiality Agreement is nonsense.

 

Frank.

 

 

[Jabiru Phil]

Simple explanation to me, it just lets the chairman to be the spokesperson for the board.

 

Happens all the time!

 

Phil.

 

 

[DonRamsay]

Thank you Don! For those who are interested, it`s Rule 20vi not 20iv.... It appears to me,this rule more or less gives the board the power to do as they wish,within the constitution!... Full stop.I find it interesting that Kaz has said in post #13, "In my view, the Confidentiality Agreement is unenforceable as a contract because it doesn't meet the definition of one...offer, acceptance, intention to create legal relations and VALUABLE CONSIDERATION". In post #17 "but it only has moral effect on a Board member"....... Following from that, I think the Confidentiality Agreement is nonsense.

 

Frank.

Correct Frank, apologies for my typo, it is as you say 20(vi)

And I think we all understand that the CA has no value.

 

 

[David Isaac]

Or what we often refer to as "Motherhood statements" they have moral value only. Plenty of corporations don't even hold to the ethics of their own motherhood statements.