The Victorian Government will today introduce a bill to restrict the use of non-disclosure agreements (NDAs) in workplace sexual harassment claims.
If passed, the bill would ban NDAs unless the complainant asked for one, and allow employees to end agreements after a one-year notice period.
The move follows a recommendation from a Parliamentary taskforce and a consultation process.
What's an NDA?
NDAs are legal documents that prevent those who sign them from sharing sensitive information.
They are also known as “confidentiality clauses” and have traditionally been used to keep business secrets.
In exchange for not naming or seeking legal action against their alleged harasser, an employee receives financial compensation or an apology.
Sexual harassment
In 2022, the Australian Human Rights Commission (AHRC) found one in three Australians has experienced sexual harassment at work. Young women, First Nations people, and LGBTQ+ people were most at risk.
Last year, the Human Rights Law Centre and Redfern Legal Centre surveyed 145 legal practitioners who handle sexual harassment complaints.
The report found 75% of lawyers always used strict NDAs to resolve harassment cases and considered this “standard practice”.
The Bill
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Under the proposed bill, employers in Victoria would be banned from using NDAs “unless requested by the complainant.”
A mandatory “review period” would be introduced, preventing employers from “pressuring or influencing” an employee to sign an agreement.
The bill would also lift restrictions for employees who want to speak to police, medical professionals, or lawyers.
Additionally, workers would be able to terminate an NDA after giving the agreement’s creator 12 months’ notice.
Experience
The Government’s bill was partly informed by a public consultation process, which included submissions from people with lived experience of being bound by NDAs.
TDA spoke to a woman named Maya*, who used to work in what she described as “a male-dominated industry”.
Maya said she was under “a number of NDAs,” at least one of which she had felt “forced” to sign.
She said these agreements are often signed “under some sort of coercion” by people who have recently left a “particularly difficult situation”.
Maya told TDA she hopes that if the bill is passed, it would serve as a “weapon... to trigger cultural change” within corporations, and help pave the way towards “equality, fairness, and respect in workplaces.”
The bill will need the support of the Coalition, or independents and minor parties, to pass the state’s upper house.
*Not her real name.
