Big step forward on NDAs

In mid-August, the Victorian Trades Hall Council (VTHC) celebrated a major win in its campaign against the overuse of non-disclosure agreements in workplace sexual harassment cases.

The Premier Jacinta Allan released a discussion paper aiming to clamp down on the potential misuse of the legal instrument to silence victims. VTHC – with the support of unions like the IEU, which has run many stories on the topic in The Point – had campaigned vigorously to ban the misuse of NDAs. The proposed legislation will be ‘the first of its kind in Australia and among the first in the world’.

NDAs were originally designed to protect trade secrets, but these days are too often used to silence victims of sexual harassment and misused by employers seeking to avoid full liability. NDAs can be used to hide serial offending and offenders.

Luke Hilakari, Secretary of the VTHC, said the anti-NDA campaign run by the Victorian union movement, led by women activists, was centered on stopping bosses from ‘coercing workers into silence’.

‘It’s an important step towards ending workplace sexual harassment. The silencing of workers (mainly women workers) using these secretive agreements protects the perpetrator, allows terrible workplace culture to continue, and prevents victims from speaking to their work mates in union to fix the problem.

‘One in three workers report being sexually harassed in the last five years. Workers who have contacted us as part of the campaign have said that they begin to feel regret about signing the NDA within three to six months and in many cases they’ve been forced out of the workplace while the employer and the perpetrator are protected by the NDA.’

VTHC and Victorian unions collaborated with Industrial Relations Victoria on the best model for restricting NDAs. Premier Jacinta Allan called the use NDAs in sexual harassment matters ‘flat out wrong’.

The engagement process for the discussion paper will seek feedback on several potential protections, including:

• prohibiting NDAs unless requested by the complainant

• ensuring no attempts have been made to unduly pressure or influence a complainant to enter an NDA

• ensuring an NDA does not adversely affect others

• providing the ability for the complainant to decide to waive their own confidentiality in the future

• establishing ‘cooling off’ periods enabling permitted disclosures (including to legal professionals, medical and mental health professionals, prospective employers, union representatives and support people).

  ‘The challenge with NDAs, and my information comes from listening directly from victim-survivors, people who have experienced sexual harassment at work, and then have had to be re traumatised by going through the NDA process, is that it silences victims,’ Ms Allan told the Daily Aus podcast ahead of the announcement.

  Ms Allan said the government would undertake consultation to see how changes to a ‘complex area of the law’ could deliver better protections to victims of abuse. She is not pushing for an outright ban on the use of NDAs because some victims may choose to have an NDA to protect their privacy.

  The government aims to ensure businesses cannot ‘unduly pressure or influence a complainant to enter an NDA’.

  Legislation to restrict the use of NDAs in workplace sexual harassment cases was a key recommendation from the Victorian Ministerial Taskforce on Workplace Sexual Harassment.