Non-disclosure agreements (NDAs) can no longer be used as a standard mechanism to resolve workplace sexual harassment matters in Victoria. Strict legal conditions now govern when an NDA can be used, what it can cover, and how it can be enforced.
The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) officially commenced on 1 July 2026. While the legislation does not completely ban NDAs, it substantially limits their application and shifts control to the complainant through informed consent and support protections.
What is a workplace NDA?
An NDA (or confidentiality clause) requires parties to keep specific information confidential. In sexual harassment disputes, NDAs have historically been included in settlement deeds to prevent complainants from discussing alleged conduct, identifying respondents, or revealing settlement terms.
The Victorian framework addresses concerns that these clauses silence workers, conceal systemic misconduct, and impede proper risk identification.
Strict Preconditions for Valid NDAs
Under the new Act, an NDA relating to workplace sexual harassment is unenforceable unless strict statutory preconditions are satisfied:
- Complainant Request: The NDA must be explicitly requested by the complainant as their express wish and preference. Employers cannot make confidentiality a default condition of settlement.
- Information Statement: The complainant must receive the official prescribed workplace NDA information statement.
- Review Period: The complainant must be given at least 21 days to review the proposed agreement (which they can choose to shorten or waive).
- No Undue Influence: The complainant must not be pressured into signing.
- Form & Plain Language: The agreement must be written in plain language, and all parties must complete a prescribed written acknowledgment confirming all preconditions were met.
Permitted Disclosures & Termination Rights
Permitted Disclosures
Even under a valid NDA, broad blanket silence is prohibited. Complainants retain a legal right to make disclosures to protected entities—including legal professionals, medical/psychological practitioners, Victoria Police, and relevant regulatory bodies.
12-Month Termination Right
A complainant who enters into an NDA covered by the Act can choose to terminate the confidentiality obligations 12 months after the agreement date.
- Termination requires at least 7 days’ written notice using the prescribed form.
- Financial Settlements Protected: Terminating the NDA does not require the complainant to repay settlement funds, and employers are prohibited from seeking compensation or imposing penalties.
Action Plan for Employers
- Update Settlement Deed Templates: Remove standard, blanket confidentiality and non-disparagement clauses from Victorian workplace settlement templates.
- Review Onboarding & Contracts: Ensure employment contracts do not contain broad non-disclosure language that purports to restrict statutory disclosures.
- Train HR & Management Teams: Educate investigators and dispute resolution managers that investigation privacy is distinct from post-settlement contractual silence.
- Distinguish Jurisdiction: The Act applies to workers connected to Victoria (including interstate employers with staff based in Victoria). Multi-state employers must tailor agreements by jurisdiction.
- Note Effective Date: The law applies prospectively to agreements entered into on or after 1 July 2026.
Workplace sexual harassment requires more than a settlement agreement. It requires a lawful, fair and proactive response.
NB Employment Law can assist employers with workplace policies, employment agreements, complaint processes, investigations and workplace relations matters.
Need help reviewing your workplace policies or settlement agreements? Talk to NB Employment Law about your obligations and the steps your business should take.