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Free speech at work? It's complicated

Let Survivors Speak

If we are to end workplace sexual harassment, we need to end the misuse of NDAs.

Gathering in Solidarity Hall for the 16 Days of Activism Against Gender-Based Violence, activist women from different industries discuss their experiences - as lawyers, IOs and survivors - of Non-Disclosure Agreements. By the end of the evening, there is consensus that they should be banned.

Non-disclosure agreements (NDAs) are commonly used in the settlement of workplace sexual harassment cases. NDAs enable harassers to continue with impunity and allow employers to hide health and safety risks from their employees. It’s not good enough.

Beaming in from Canada to address the meeting, Dr. Julie Macfarlane, co-founder of the global Can’t Buy My Silence campaign to ban NDAs, spoke about efforts to limit NDAs in Canada and Britain.

union women discuss the campaign to ban NDAs at an event in Solidarity Hall

Sascha Peldova-McClelland, Senior Legal and Industrial Officer at the ACTU, described her despair during the global “Me Too” protests, knowing that Australian women who had settled harassment claims were legally barred from sharing their stories. She described how NDAs are so normalised in the legal profession that a judge once chastised her for trying to make alternative provisions for her client.

Liberty Sanger is a Principal at Maurice Blackburn Lawyers. She echoed Sascha’s sentiment, and described how despite a formal plea from the Australian Sex Discrimination Commissioner for employers to (temporarily) waive confidentiality obligations, only 30 employers nationwide agreed to let women speak of their experience.

VTHC Assistant Secretary Wil Stracke puts it plainly. “We need to ban all non-disclosure agreements in cases of workplace sexual harassment and discrimination, other than those requested by victim-survivors to protect their own confidentiality. We need to end the silence.”

So in 2023, union women will campaign to change the status quo.

The campaign is not without its complexities - some legal advocates voice concerns that winning compensation for victims will be more difficult without the “carrot” of confidentiality on the table.

But conversely, deprived of the easy public-relations solution of an NDA, employers might find themselves more motivated by the “stick” of public shaming. Transparency about the prevalence of gendered violence in corporate Australia - and how these hazards are being dealt with - will empower women workers to exercise choice in which companies to consider as employers.

It’s well past time to hold corporate Australia accountable for sweeping gendered violence under the rug.

We need to end the silence. Support the campaign by signing the petition. 

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