Workplace sexual harassment: Victoria’s new rules for non-disclosure agreements

Under the Act, workplace sexual harassment means sexual harassment committed, or alleged to have been committed, against a worker in their workplace or in connection with their work. 

A workplace non-disclosure agreement is defined broadly. It includes any agreement, or part of an agreement, whose purpose or effect is to prevent a complainant from disclosing material information about workplace sexual harassment, regardless of whether that purpose or effect is ultimately achieved. 

The agreement must involve the complainant and at least one of:

• their employer; or
• the respondent, such as another worker.

Importantly, workplace sexual harassment will be connected to Victoria if:

• the complainant usually works in Victoria;

• if there is no jurisdiction in which the complainant usually works, the complainant is based in Victoria for the purposes of their work;

• if there is no jurisdiction in which the complainant usually works or in which the complainant is based for work, the principal place of business of the organisation engaging the worker is in Victoria; or 

• if a connection to a particular jurisdiction is not established as set out above, the workplace sexual harassment occurs or allegedly occurs in Victoria.

These laws specify agreements which contain non-disparagement or non-disclosure obligations as examples of workplace non-disclosure agreements. 

The Act recognises an exception for certain ‘protected information’. This information may remain confidential under a workplace NDA without needing to satisfy the mandatory six preconditions discussed below. 

‘Protected information’ in relation to a sexual harassment means:

• the amount of any financial compensation payable to the complainant in respect of the sexual harassment; and

• the identity of the respondent (only if the respondent was under 18 at the time of the commission or alleged commission of the sexual harassment). 

Under the Act, a workplace NDA is now only enforceable against a complainant if all six of the following mandatory preconditions are satisfied.

1. The complainant must request the NDA: organisations, respondents and their representatives cannot suggest, propose or request that the complainant enter into an NDA.
2. It must be the ‘ complainant's express wish and preference to enter into the NDA ’: the complainant must enter into the NDA because they genuinely have a desire for confidentiality, not because they feel obligated or pressured to do so.
3. Workplace non ‑ disclosure agreement information statement: the complainant must be provided with the pro forma government NDA information statement after requesting the NDA and  before signing it.
4. 21-day review period: the complainant must have at least 21 days to review the NDA prior to signing it, unless the complainant themselves requests a shorter period or waives the review period entirely.
5. Acknowledgement form: each party to the NDA must acknowledgment that the above four preconditions have been met. ^[1]
6. No undue influence or pressure: the complainant must not be unduly influenced or pressured into requesting or entering into the workplace NDA by their employer, the respondent or their either of those parties’ representatives.

The Act also expressly requires that the NDA: 

• be written in plain language; and
• that the complainant be provided with a copy of the executed NDA and acknowledgement form.

Even where a workplace NDA satisfies all of the mandatory preconditions, it cannot prevent the complainant from disclosing information about workplace sexual harassment to various people and organisations (unless the information being disclosed is protected information), including but not limited to: 

• Victoria Police and the Office of Public Prosecutions;
• an Australian legal practitioner or the Victorian Legal Services Board;
• registered medical practitioners and mental health professionals;
• an officer or employee of a registered employee organisation (such as a union) for the purposes of obtaining advice or assistance;
• employers or prospective employers (for the purposes of obtaining or maintaining work);
• friends or family members (for personal support, provided they agree to keep the information confidential);
• integrity bodies including IBAC and the National Anti-Corruption Commission; and
• certain government bodies including the Australian Human Rights Commission, Fair Work Commission, Fair Work Ombudsman, Victorian Equal Opportunity and Human Rights Commission, and similar bodies provided that the identity of the respondent and the complainant’s employer remain anonymous. ^[2]  

The Act also provides that a workplace NDA must not prevent a complainant from disclosing the amount of financial compensation payable in respect of the workplace sexual harassment to: 

• Centrelink,
• a financial advisor, for the purpose of obtaining financial advice; or
• to a tax agent for the purpose of obtaining tax advice. ^[3]  

To the extent that a workplace NDA would prevent the complainant from making a permitted disclosure, including as set out above, it will be invalid.

The Act introduces a new breach notice process. 

A complainant who has signed a workplace NDA may issue a written notice to each other party to the agreement if they believe that any of the preconditions have not been met. 

If no party applies to the Industrial Division of the Magistrates Court for an order in relation to the enforceability of the NDA within 30 days, the mandatory preconditions will be taken not to have been satisfied and the NDA will be unenforceable. 

A complainant may terminate a workplace NDA once it has been in place for at least 12 months by providing seven days' written notice to each other party to the workplace NDA.[4]

The unenforceability or termination of an NDA does not affect the validity and enforceability of any separate settlement agreement. 

The Act also regulates NDAs entered into between the complainant’s employer and the respondent. 

Except for the extent that they relate to protected information, these NDAs will be unenforceable against the employer if they would prevent the employer from: 

• conducting an investigation into the workplace sexual harassment; or
• if the complainant's employer determines that the allegations of workplace sexual harassment are substantiated, disclosing material information about the workplace sexual harassment to a prospective employer of the respondent.