Non-Disclosure Agreements in Workplace Sexual Harassment Matters
In a landmark move by the Victorian Government, the use of non-disclosure agreements in matters involving workplace sexual harassment will soon be restricted. The decision comes following the Government’s acceptance of a number of recommendations made by the Ministerial Taskforce for Workplace Sexual Harassment (the Taskforce).
What is a Non-Disclosure Agreement?
A non-disclosure agreement (NDA), sometimes referred to as a ‘gag order’ is a contractual agreement between two parties not to discuss or publish details of an agreement or matters informing the making of that agreement. Essentially, it is a binding agreement that prevents sensitive information being shared with others.
NDAs are used in a range of circumstances which involve sensitive information. NDAs can be used to protect trade secrets or sensitive information relevant to business deals or relationships, to protect ideas and information regarding new products that are yet to be developed or as part of settlement agreements in disputes. The latter use is typically invoked to prevent reputational damage to a party to the dispute.
Foreshadowed Restrictions on Non-Disclosure Agreements in Victoria
The Taskforce sought to consider ways to strengthen the occupational health and safety framework to address workplace sexual harassment, clarify employer obligations to boost accountability, encourage and support workers to speak up, and prevent the misuse of non-disclosure agreements in workplace sexual harassment matters.
In its report to the Victorian Government, the Taskforce noted that NDAs are being misused in matters of sexual harassment, motivated often by the need to silence victims, protect employer reputations, avoid full liability and hide serial offending and offenders. This commonly causes additional trauma for victims or prevents them from being able to seek the support they need to recover from the conduct against them. Accordingly, the Taskforce recommended that the Victorian Government pass legislation to restrict the use of NDAs in workplace sexual harassment matters.
In response, the Victorian Government accepted (in principle) the recommendation and will undertake to consider appropriate options for implementing this recommendation. The Government noted, however, that given the complexity of the matters and the need to balance the interests of all parties and organisations that will be affected by laws restricting NDAs, it will likely be some time before legislation is introduced.
A copy of the recommendations made by the Taskforce can be accessed here.
Other changes for Victoria
The Taskforce made a number of other recommendations to reduce instances and impacts of workplace sexual harassment, many of which have been accepted by the Victorian Government. Some of the other recommendations include:
- sexual harassment be treated as an occupational health and safety issue, expanding the obligation on employers to take proactive steps to eliminate associated risks and hazards;
- increased funding for WorkSafe to manage and prevent instances of sexual abuse in workplaces;
- a new Compliance Code to support the psychological health amendments to the Occupational Health and Safety Regulations 2017 (Vic), to include guidance on internal reporting, complaints handling and investigations, as well as industry-specific guidance for high-risk industries.
The landscape of workplace health and safety is complex and ever changing. It is prudent for all employers and leaders, including Principals, to ensure they remain on top of legislative changes and meet their obligations for workplace health and safety.
The Taskforce report presents a positive catalyst to review your policies and practices around managing workplace sexual harassment, to ensure that you remain proactive in this space and are not forced to react dramatically to legislative changes upon implementation.
How can Brennan Law Partners assist?
Matters of workplace safety, sexual harassment and non-disclosure statements all involve many complex factors and considerations. Accordingly, when faced with these issues, we recommend that you act promptly to obtain legal advice to avoid acts or omissions that compound the situation.
Also, if you would like assistance to review your policies and practices around managing sexual harassment in the workplace or other matters of workplace safety, please reach out and book a no-obligation chat.
If you have any queries relating to this brief, or require assistance to respond to something happening at your school, please contact us.