AUSTRALIA

The Victorian Government has accepted in principle, the recommendation made by the Ministerial Taskforce on Workplace Sexual Harassment- of which Can’t Buy My Silence consulted on- which recommends restricting the use of a NDAs in workplace sexual harassment matters.

The Taskforce recommended that when considering and drafting legislation, the Victorian Government should use Ireland’s Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (the EE Bill) as the model for reform.

If enacted, the EE Bill will prohibit employers from entering into NDAs in situations where an employee has experienced or alleges sexual harassment, except at the employee’s request. An NDA will not apply in relation to communications between the employee and specified persons (including medical professionals, mental health professionals and the employee's friends and family). Further, such an NDA will only be enforceable if certain criteria are met, including that:
• the employer has offered the employee independent written legal advice provided at the employer's expense;
•the NDA does not adversely affect the future health or safety of a third party or the public interest; and
• the NDA includes an opportunity for the relevant employee to decide to waive their own confidentiality in the future.

The EE Bill provides that an employer entering into an NDA that does not cooperate with the above criteria will be guilty of an offence, and the NDA will be null and void. If passed, the legislation will mark a dramatic a shift away from the culture of silence in Australia.