Victoria: New legislation restricts use of non-disclosure agreements in workplace sexual harassment claims

At a glance

• Victoria has become the first Australian jurisdiction to introduce laws to restrict the use of non-disclosure agreements (NDA) in workplace sexual harassment claims.
•  The Victorian Parliament has passed the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 (Bill) following recommendations by the Australian Human Rights Commission to restrict the use of NDAs and confidentiality agreements in sexual harassment claims.
• The Bill applies only to sexual harassment matters where complainants 'usually' work, or are based, in Victoria and will not apply to NDAs made before the legislation takes effect.

The Bill aims to promote the health, safety and welfare of persons at work by regulating non-disclosure agreements relating to sexual harassment complaints and addressing the power imbalance between complainants and their employers.

The Bill outlines several preconditions that must be met before an NDA can be entered into, including:

• A complainant must clearly request and make and expressly wish to enter a NDA.
• An employer must provide the complainant with a 'workplace non-disclosure agreement information statement' (which will include information about the NDA regime.
• The complainant must be given a 21-day cooling off period to review the NDA before they sign the NDA (with the option for the complainant to waive the review period or request a lesser timeframe).
• Employers and individual respondents are prohibited from pressuring an employee to enter into an NDA.
• The complainant must sign a form acknowledging the preconditions have been met.  

The Bill also prohibits any terms that prevent a complainant from disclosing 'Material Information' to relevant personnel or bodies, including, but not limited to, an Australian legal practitioner; a medical practitioner; the police force; a friend or family member who has agreed to confidentiality; or a Minister of Religion.

‘Material Information’ includes the identity of the respondent and / or details relating to the alleged or substantiated conduct. Employment contracts are not exempt from this standard and must be free from terms that prevent a complainant from disclosing Material Information.

Although complainants will be permitted to share Material Information with relevant personnel, they are unable to share 'Protected Information', which includes:

• the individual respondent's identity, if they are under the age of 18; and
• the amount of compensation received, to persons or bodies other than Centrelink, a financial advisor or tax agent.

The Bill also covers NDAs that are entered into between the employer and the individual respondent. These agreements cannot prohibit:

• the employer from disclosing substantiated allegations of workplace sexual harassment relating to the respondent, to a prospective employer; or
• a workplace investigation into sexual harassment from taking place.

Failure to satisfy various requirements for NDAs captured by the Bill will likely result in the agreement being held unenforceable.

Complainants are entitled under the Bill to action breaches by issuing 'breach notices' to employers who have failed to meet the necessary preconditions. 

An employer will have 30 days to apply to the industrial division of the Victorian Magistrates' Court for an order that it has met the preconditions. If the employer does not make an application within the 30-day deadline, the NDA will no longer be considered binding.

Employers should be cognisant of these new requirements when dealing with sexual harassment cases and consider the necessity of NDAs in these scenarios.