‘Silence is not golden’: Victoria refines NDA legislation

A recent article co-authored by Hall & Wilcox employment lawyer Fay Calderone and senior associate Laura D’Aprano for the national law firm’s website explained that workplace NDAs are now only enforceable if they satisfy six preconditions: the complainant must request the NDA, it must be there “express wish and preference to enter into the NDA”, they must receive the pro forma government NDA information statement after requesting and before signing the NDA, they must have at least 21 days to review the NDA, each party must acknowledge that the four aforementioned conditions have been met, and the complainant must not have been influenced or pressured into requesting or entering the NDA.

The NDA must also be written in plain language, and the complainant must be provided with a copy.

Even where all preconditions are met, the complainant is not prevented from disclosing information about workplace harassment to the state’s police and Office of Public Prosecutions, as well as legal and medical practitioners, a member of an employee organisation, employers, integrity bodies, family, and certain government bodies.

Speaking to HR Leader, Calderone said the reform signals a shift in how organisations should approach sexual misconduct within organisations.

The new restrictions, she explained, “recognise that workplace cultures improve when issues are addressed transparently, rather than being hidden from view. While confidentiality may still have a role where it is genuinely sought by a complainant, employers should see complaints as opportunities for learning, accountability, and cultural improvement”.

Calderone added that transparency benefits organisations by aiding the identification of systemic risks, providing a stimulus to strengthen trust in reporting processes and reinforce to the workforce that inappropriate behaviour will have consequences.

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In this way, Calderone and D’Aprano urged Victorian organisations to review existing NDA templates to ensure compliance with the act’s requirements, seek advice about how to structure NDAs concerning workplace sexual harassment – including what information is protected from disclosure – and offer training to senior leaders and HR professionals.

This training, the authors continued, should explain the new laws, including the mandatory preconditions, ensure familiarity with relevant guidance materials and documents, and recognise that complainants will retain broad disclosure rights.

“When it comes to reports of sexual harassment and workplace misconduct, silence is not golden,” Calderone said.

“Success should not be measured by the absence of complaints, but by indicators that employees feel safe to speak up, have confidence concerns will be handled appropriately, and see meaningful action taken in response.”

“Ultimately, workplaces that prioritise psychological safety, respectful leadership and continuous learning are better placed to prevent harm before it occurs.”