Victoria could become the first state to reform the use of non-disclosure agreements (NDAs) in workplace sexual harassment claims.
TDA EXCLUSIVE.
The State Government announced it was considering NDA reforms in July 2022.
Now, it’s announced it’s opening up a new phase of consultation to
change Victoria’s laws. This could include time limits on NDAs and giving victims the choice to waive their confidentiality in the future.
Victorian Premier Jacinta Allan told TDA she wants to see changes to ensure “victim survivors aren’t silenced”.
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.
Multiple reports have shown that NDAs are frequently used in response to workplace sexual harassment.
In these instances, a worker receives compensation, like payment or an apology. In exchange, they agree not to name their alleged harasser, or seek legal action.
Sexual harassment
According to 2022 data from the Australian Human Rights Commission (AHRC), one in three Australians has been sexually harassed at work.
The AHRC report found women under 30, First Nations people, and LBGTQ+ people were most at risk of being sexually harassed at work.
The AHRC has guidelines for employers about using NDAs in the workplace, although they are not legally enforceable. NDAs are settled out of court and there is no specific data on the scale of their use in Australia.
Earlier this year, a joint report by 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”.
Researchers concluded that NDAs “are continuing to be used, misused and over-used,” and have “enabled employers to cover up patterns of misconduct and protect repeat abusers.”
Victoria
In 2021, Victoria’s Government set up a taskforce to look into workplace sexual harassment, including the “misuse of NDAs in workplace sexual harassment matters”.
A year later, the Government published the taskforce’s recommendations, which included changing laws to “restrict the use of NDAs” in workplace sexual harassment cases.
It found NDAs are “often misused to silence victim-survivors, protect employer reputations, avoid full liability and hide serial offending.”
Proposals
Speaking to TDA, Victorian Premier Jacinta Allan said she wants to stop “paperwork being used to silence victim survivors” of sexual harassment.
She’s offered up some proposals for change:
- Only allowing NDAs when they are requested by someone making a sexual harassment complaint
- Time limits – to avoid indefinite NDAs
- Options to abandon confidentiality in future
While NDAs can be used to protect people’s privacy, Allan said the process can be “re-traumatising” and has too frequently been misused as a “tool to silence victims”.
From today, the Victorian Government has opened up a four-week public consultation period on its proposed NDA changes.
The Government will consider feedback from the community before it introduces legislative reforms.
This could include implementing strategies like “prohibiting the use of NDAs unless they are requested by the complainant.”
Will NDAs change in Victoria?
Depending on how the public responds to its proposal, Victoria could become the first state in Australia to overhaul NDAs.
Former state Liberal leader, Matthew Guy, said in July 2022 that the Coalition was open to reforming NDAs, adding that victim-survivors need to lead the process.
A UK study found 95% of people who signed NDAs had negative mental health impacts as a result of staying silent about their experiences.
The U.S. passed a law limiting the use of NDAs in 2022. Canada has also proposed similar laws.
