Victoria mulls banning NDAs on workplace sexual harassment

The Victoria government has announced that it is considering restricting the use of non-disclosure agreements (NDAs) for workplace sexual harassment cases, among other steps to protect employees in workplaces.

According to the state government, NDAs are often misused to silence victim-survivors, protect employer reputations, avoid full liability, and hide serial offending.

This will be the first time a "complex reform" is attempted, said the state government, adding that it will be working with unions, businesses, legal aids, as well as victim-survivors to develop the appropriate model and scope of the restriction before introducing legislation.

Restricting NDAs is one of the recommendations from the Ministerial Taskforce on Workplace Sexual Harassment released by Workplace Safety Minister Ingrid Stitt.

The taskforce was co-chaired by Parliamentary Secretary for Workplace Safety Bronwyn Halfpenny and experienced workplace injury lawyer Liberty Sanger, with representatives from unions, employer groups, legal professionals, and vulnerable workers.

They made 26 recommendations across four reform pillars, including:

• preventing sexual harassment from occurring
• supporting workers to report sexual harassment
• enforcing compliance when there is a breach of health and safety duties
• raising awareness and promoting accountability in workplaces across Victoria

"The reforms in response to our recommendations will equip workers, employers and their representatives with the tools to better prevent and respond to workplace sexual harassment," said Halfpenny in a statement.

The state government said it accepts 12 of the recommendations, accepts in-part two of them accepts in-principle seven of them, notes one recommendation, and considers four as requiring further consideration.

"A workplace that is not free from sexual harassment is not a safe workplace. These reforms will ensure employers understand they have clear occupational health and safety obligations to protect workers from sexual harassment," said Stitt in a statement.

Read more: Victoria's workplace reforms take effect

Restriction of NDAs was one of the recommendations accepted in-principle. Meanwhile, it accepted that work-related gendered violence and workplace sexual harassment should be treated as an occupation health and safety (OHS) issue.

According to the government, it will help WorkSafe build its capacity to tackle sexual harassment with nearly $7 million in over three years in the Victorian Budget 2022/23.

This will help expand WorkSafe's WorkWell programme, said the state, which provides employers with resources and funding opportunities to prevent mental injury and promote mentally healthy workplaces.

A part of it will also then be dedicated to preventing workplace sexual harassment.

Another accepted recommendation is the introduction of new employer de-identified reporting requirement for psychological health hazards, including work-related gendered violence and sexual harassment. 

"It has taken the strength of many women who have spoken out, shared their experiences and continued to fight for a better culture to arrive at these recommendations. Today we're taking further steps towards ensuring all workplaces are safe," said Minister for Women Natalie Hutchins.