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What do you mean, 'Closing the Loopholes'?

Ending the misuse of Non-Disclosure Agreements

Rather than dealing with issues of sexual harassment and gendered violence in workplaces, Australian businesses are sweeping the problem under the rug using Non-Disclosure Agreements. This must change – and activists are fighting for legislation to ban NDAs in state parliament.

Imagine starting a new job at a new workplace, only to discover that the work exposes you to a toxic hazard that has caused injury and harm to your new co-workers and predecessor. The hazard could be dealt with, but instead, your employer chose to pay a large sum of money to your predecessor for them to keep their injury quiet. Your predecessor – needing the money to treat their injury – begrudgingly accepted.

Bizarrely, this is not only completely legal in Australian workplaces, it is the accepted norm. In order to claim compensation for a workplace injury, workers are coerced into signing “Non-Disclosure Agreements” (NDAs) that require them to keep all details of their injury and how it occurred completely secret – even from family and friends. And one common toxic hazard that is covered up by these secrecy clauses is workplace sexual harassment.

NDAs are so prevalent in cases of workplace sexual harassment that unions and workplace lawyers say they are effectively compulsory. Arbiters of disputes admonish advocates as “unreasonable” if their client seeks compensation and wishes to preserve their right to speak openly of their experience. Why? Why do businesses possess this implied right to cover-up their misdeeds? Why do we tell victim-survivors that the business reputation of their employer is more valuable than their own healing? Compensation isn’t hush money – but employers are treating it like it is.

As an employee, as a client, or as a consumer, you have a right to know about the business practices of brands you deal with. Australian businesses spend billions in public relations, protecting and enhancing their brand image. They invest in advertising campaigns to associate their business with progressive values and causes, but fiercely protect themselves from scrutiny on the same.

Sunlight is the best disinfectant. Removing business’ ability to attach NDAs to every workplace sexual harassment resolution will encourage transparency in the way businesses deal with gendered violence hazards.

Sexual harassment and all forms of gendered violence are occupational health and safety issues, and like any other OHS issue, they can be controlled and resolved, or even eliminated. Contrary to popular belief, simply terminating the perpetrator is rarely an ideal response. System change, training, and positive leadership can all help to create culturally safe workplaces where everyone can contribute and no-one is left behind. Implementing such change is the legal responsibility of any business where gendered violence hazards are identified. But rather than dealing with these hazards, Australian businesses are sweeping the problem under the rug using NDAs.

But by far the greatest harm of NDAs is inflicted upon the victim-survivors who are coerced into signing them. Through research in the Victorian union movement, we know that workers who sign NDAs frequently come to regret their decision but remain bound by the terms of the NDA for life. Workers have described to us the trauma of feeling afraid to disclose their harassment even to close family members or counsellors, fearing – with good reason – legal charges against them. It is obscene that victims of crime be silenced in this way.

Journalists, legal advocates and unions have long decried the chilling effect of NDAs on our workplace relations. Now, working women are campaigning for legislation to restrict the use of these NDAs in cases of sexual harassment. Today (Thursday 22 June) 65 women are descending on Spring Street to share their experiences with state MPs, and call for change. We are calling for legislation to ban the misuse of NDAs in cases of workplace sexual harassment, other than where they are expressly requested by victim-survivors to protect their own privacy. In these cases there should be clear safeguards in place to ensure the worker has not been coerced, and any confidentiality should be time limited and subject to waiver by the victim-survivor.

Workplaces can only improve when workers are free to openly discuss their shared concerns. Workers, and particularly victim-survivors of sexual harassment, must feel supported to raise safety concerns so that action can be taken to eliminate or control workplace hazards. Businesses – indeed, all Australians – should celebrate workers who raise safety concerns and advocate for safer workplaces. Instead of decrying individual perpetrators as monsters, we must acknowledge the ubiquity of gendered violence in our workplaces and communities. We must accept the responsibility for change.


Wilhelmina Stracke is a prominent feminist activist and the Assistant Secretary of Victorian Trades Hall Council.