The use of nondisclosure agreements will be restricted in sexual harassment cases to prevent victim-survivors being silenced, under reforms proposed by the Victorian government that are backed by employment lawyers and industry groups.
The move – an Australian first – was announced on Monday by Victoria’s workplace safety minister, Ingrid Stitt, who said the proposed reforms were a direct response to a ministerial taskforce investigating workplace sexual harassment, which made 26 recommendations. Most have already been accepted by the government.
Guardian Australia understands the federal Attorney General’s Department is also developing guidelines on the use of nondisclosure agreements (NDAs) in a response to a recommendation from a report on making workplaces safer by the sex discrimination commissioner, Kate Jenkins.
Josh Bornstein, a high-profile employment lawyer, said the best approach for Victoria’s legislative response was to ensure victim-survivors had a choice about signing such legal contracts, which prevent parties from disclosing sensitive information
“Ensure that the victim-survivor has the option to make sure that, in any legislative change, there’s still a trauma-informed approach – so the person who is the most impacted by this doesn’t lose their choice or agency,” Bornstein told Guardian Australia.
Bornstein, the head of Maurice Blackburn’s employment and industrial law division, said he expects other states and territories to follow Victoria in enacting a legislative response on NDAs.
Stitt said the government had not set a deadline for the reform as it wanted to conduct a “detailed analysis of what legislative change could look like” and ensure there were no unintended consequences.
The ministerial taskforce recommended the government base its reform on a proposed Irish bill that aims to prevent NDAs being used to cover up discrimination.
Amanda Lyras, a partner at law firm Clayton Utz, said Victoria’s model would need to carefully consider elements of the Irish model, such as allowing complainants to waive confidentiality and having time-limited NDAs.
Lyras said there were benefits to confidentiality agreements, such as reducing further trauma from a matter being aired publicly, protecting a complainant’s privacy and allowing them to gain some closure.
“Some complainants may prefer confidentiality and their preferences should be respected,” she said.
“I don’t think it would be appropriate to impose a blanket ban on NDAs because there will be a number of circumstances where they will be appropriate, and indeed, some complainants will only come forward with the basis that the matter is treated confidentially.”
The taskforce also recommended sexual harassment be treated as an occupational health and safety issue and for this to be allocated to the regulator, Worksafe Victoria.
The Victorian head of peak employer association Australian Industry Group, Tim Piper, said restricting NDAs was understandable but called for a “nuanced” legislative response.
He said there was a need for inspectors at WorkSafe Victoria to be educated in how to sensitively deal with sexual harassment and for employers to understand their responsibility.
“How to be conscious of it, what to do about it – it’s a big education campaign that’s required,” he said.
The Victorian Trades Hall Council assistant secretary, Wil Stracke, said NDAs had become widespread and led to victim-survivors being gagged.
“Bad cultures flourish when people can’t shine a light on it,” Stracke said.
“At the moment employers won’t sign off on a settlement unless it [an NDA] is there.”
The Victorian government has vowed to consult victim-survivors, unions, business group and legal experts on a model to limit NDAs before legislation is introduced to parliament.
The opposition leader, Matthew Guy, said the Coalition would work with the government on the reform but stressed the process needed to be led by victims.
