Submission to the Restricting Non-Disclosure Agreements in Workplace Sexual Harassment Cases Discussion Paper
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Recommendation 1: That the Victorian State Government implement the recommendations of the Victorian Trade Hall Council’s (VTHC) submission in full. Those discussed in this submission include:
- Prohibiting NDAs unless expressly requested by the victim-survivor.
- Ensuring NDAs are only enforceable if the victim-survivor had the opportunity to seek independent legal advice.
- Allowing victim-survivors to waive their confidentiality without automatically waiving the employer’s obligation to maintain privacy.
- Standardising NDAs to include specific elements like confidentiality waivers and permitted disclosures.
Recommendation 2: Enforceable regulations and guidelines must be published to aid with compliance with the legislation must emphasise the need for a culturally sensitive and intersectional approach to better support the diverse needs of victim-survivors.
Recommendation 3: Victim-survivors should choose their own legal representation but should have the option to have legal costs covered by their employer, especially if they face barriers to accessing legal services. To ensure the independence of the legal advice:
- Employers must contribute to an independent fund to disburse payments for legal advice.
- Legal practitioners must assess and refer victim-survivors to appropriate services for potential issues under other areas of law. Failure to do so can render the NDA voidable.
- Legal practitioners must complete training about the impacts of NDAs, incorporating traumainformed, culturally sensitive, and intersectional approaches.
Recommendation 4: Incorporate mechanisms to prevent undue influence and/or undue pressure, including a presumption of undue influence in circumstances where employers have significant control over a worker’s livelihood or legal status.
Recommendation 5: NDAs should adhere to a prescribed form that requires them to be:
- Drafted in plain English and maintained in a consistent format;
- Made fully comprehensible to victim-survivors through translation and interpreting services, if required; and
- Available in alternative formats such as large print, easy English, or audio.
Recommendation 6: Legal reform must be appropriately resourced to effectively address occupational health and safety issues such as sexual harassment. Training programs must be developed to promote understanding and compliance, incorporate a trauma-informed and culturally appropriate approach, and address sexual harassment and gender-based violence as issues requiring systems-level responses.