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NDA restriction needs ‘considered, measured’ approach, says LIV
Any proposed legislation that seeks to restrict the use of NDAs would need to address numerous considerations to ensure it is fit for purpose, says the Law Institute of Victoria.
Jerome Doraisamy
The Victorian government has responded to the recommendations of the state’s Ministerial Taskforce on Workplace Sexual harassment, which – following its establishment in March of last year – handed down 26 recommendations on how to better prevent and respond to sexual harassment in workplaces.
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That response includes acceptance, partial acceptance or in-principle acceptance of 21 of the 26 recommendations made by the taskforce.
One recommendation that was accepted in principle was that the Victorian government introduce legislative amendments to restrict the use of non-disclosure agreements (NDAs) in relation to workplace sexual harassment cases in the state, using the Irish Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 and lessons from other jurisdictions (such as the United Kingdom and the United States) as the model for reform.
NDAs, the taskforce had noted, may be misused in order to protect perpetrators and hide serial offending.
In its response to this particular recommendation, the government noted the “complexity of NDAs and the significant further work required before any legislative amendments are made to regulate NDAs”.
It said it would undertake further work on appropriate options for restricting the use of NDAs in workplace sexual harassment cases.
Following the state government’s response to the recommendations, the Law Institute of Victoria (LIV) said that it supports concerted action to address workplace sexual harassment and would welcome the adoption of a nationally consistent approach.
LIV president Tania Wolff said that the organisation is keen to contribute to legislative reform in this area.
“The LIV is committed to eradicating sexual harassment in all Victorian workplaces and believes that there should be a nationally harmonised approach to this,” she said.
This said, any proposed legislation that seeks to restrict the use of NDAs would need to address numerous considerations to ensure it is fit for purpose, LIV stressed, including its interaction with existing state and federal laws, and adequate protection for victims’ rights.
“We would support a considered and measured approach to a reconsideration of the use of NDAs in settling workplace complaints. It is not a one size fits all issue,” Ms Wolff posited.
“The privacy and confidentiality of victims of workplace sexual harassment is an important consideration too.”
LIV has, Ms Wolff went on, advocated for the elimination of sexual harassment in workplaces for many years.
“The Victorian Legal Services Board + Commissioner and Szoke reports into sexual harassment in the legal profession, and Victoria’s courts and tribunals, highlight the urgency for change in legal sector environments,” she said.
“The LIV has been active in providing resources, policies, support, training and leadership in efforts to eradicate sexual harassment in the Victorian legal profession. But, of course, the issue applies to every workplace.”
Elsewhere, LIV noted recommendation 20 of the Taskforce report: to explore options for a pilot restorative justice model to address workplace sexual harassment. This recommendation was also accepted, in principle, by the state government.
“The LIV has long been an advocate for a greater use of restorative justice responses to conflict and harm, which the legal system does not always respond to as effectively,” Ms Wolff said.
“We would welcome a restorative justice pilot to respond to sexual harassment in the workplace which can offer an alternative pathway to ensure better outcomes for victims.”
