| From 1 July 2026, the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 (Act) will come into effect in Victoria.[1]
The Act was developed in response to recommendations of the Victorian Ministerial Taskforce on Workplace Sexual Harassment to the Victorian Government on how the state’s occupational health and safety framework could be strengthened, specifically in preventing the misuse of non-disclosure agreements (NDAs) in workplace sexual harassment matters.
Section 8 of the Act outlines certain preconditions that must be satisfied for a workplace NDA to be enforceable, these are:
(a) the complainant requests to enter into a non‑disclosure agreement (however described); and
(b) it is the complainant’s express wish and preference to enter into the agreement; and
(c) after requesting the agreement and before entering into the agreement, the complainant is given a copy of the workplace non‑disclosure agreement information statement; and
(d) subject to subsection 8(2) of the Act, the complainant is given a period of at least 21 days to review the agreement before entering into the agreement (subsection 2 states that the complainant may request that the 21-day period be reduced and/or waived); and
(e) before entering into the agreement, each party to the agreement acknowledges in a form approved by the Secretary that the preconditions referred to in paragraphs (a), (b), (c) and (d) have been met.
Where these conditions are not met in full, the NDA will not be enforceable against a complainant to the extent that the agreement has the purpose or, if enforced, would have the effect of preventing the complainant from disclosing material information about workplace sexual harassment.
In addition, the Act will grant a complainant a right to terminate an NDA to the extent that it has the purpose or effect of preventing a party from disclosing material information about workplace sexual harassment on or after the first anniversary date on which it was entered. A complainant must provide 7 days written notice before terminating an NDA.
Where an NDA is unenforceable or terminated, it will not affect the validity or enforceability of the rest of the agreement.
Takeaway for Employers
Employers operating in Victoria can no longer rely on NDAs to manage risk and reputation. These employers should:
- be aware of the changes and the impact that they will have on settlement terms in matters pertaining to workplace sexual harassment;
- review template contracts and settlement agreements; and
- review investigation and complaint handling processes.
More broadly, the Victorian reforms reflect tightening workplace sexual harassment regulations, and a shift away from the use of broad confidentiality clauses in settlement agreements, following the Respect@Work reforms. Employers can expect further reforms in this space.
EMA Legal can provide advice on workplace sexual harassment.
[1] Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) |
