Submissions to the Victorian government's review of non-disclosure agreements (NDAs) has revealed overwhelming support for restricting their use in sexual harassment matters. Around 90% of formal submissions received from unions, individuals, the legal sector and community organisations supported change.
Unionists have proudly led this campaign! This is a huge step forward and a clear reflection of the power of our movement in changing the conversation and creating change. Congratulations to every victim-survivor, unionist and activist who campaigned for this, particularly those who shared their stories. Your collective action is driving this change.
A non-disclosure agreement (NDA) is a legal contract that establishes confidentiality (keeping secret) a sexual harassment or other workplace issue. It requires the worker who suffered harassment to keep their experience completely confidential - that is, they are not allowed to talk about what happened to them, often not even with family, partners or their therapist.
Although NDAs require all parties (employer, victim-survivor, and sometimes the perpetrator) to maintain confidentiality, the agreement is almost always requested by the employer, not the employee.
Victims of workplace sexual harassment often feel they have no choice but to agree to confidentiality to resolve their complaint. NDAs have been a key factor in perpetuating such harmful workplace behaviour as harassment and sexual assault. How can we resolve a safety issue if we are legally banned from discussing it?
41 of the 46 submissions received emphatically back reform, with the majority supporting an outright ban on NDAs for sexual harassment cases unless requested by the complainant. All eleven trade unions that submitted responses, as well as the ACTU and VTHC, also supported reform.
The five submissions not in full support of the proposed reform were all from industry-based bodies. The Australian Industry Group opposed an outright ban. Both The Australian Chamber of Commerce and Industry and The Victorian Chamber of Commerce and Industry believe the issue should be dealt with at a federal level. The Australian Retailers Association urged non-disparagement clauses to be excluded from change and The Law Institute of Victoria also opposed the prohibition of NDAs unless requested by the complainant.
VTHC’s Young Workers Centre said it had represented dozens of young workers in relation to sexual harassment claims, including a 15-year-old girl it gave the pseudonym Dahlia, who was working at a supermarket when her supervisor – a man “almost three times her age” – “touched her, embraced her, massaged her, isolated her from her co-workers, used sexual innuendoes and made sexual advances”.
Dahlia settled a claim for sexual harassment and received some compensation, but had to sign confidentially and non-disparagement agreements, which restricted her from speaking to family, friends and her counsellor about her experience.
The Victorian government is expected to release its policy position soon, with legislation to be introduced to parliament in 2025. It will be the first Australian state to commit to restricting the use of NDAs in sexual harassment cases.
Union women welcome the overwhelming support for significant reform, which gets us a step closer to ending workplace sexual harassment.
VTHC Assistant Secretary Wil Stracke says “This is real progress. Union women have been campaigning and lobbying for this for a long time, and we are proud that there is overwhelming support among unions, the legal profession, workers and the community. Victoria will lead what we hope is nationwide change. We need to stand together and centre victims' voices who have been silenced for so long and make our workplaces safer.”
