Victoria restricts the use of non-disclosure agreements in workplace sexual harassment matters

From 1 July 2026, the use of non-disclosure agreements (NDAs) in relation to workplace sexual harassment matters will be restricted in Victoria.

The Restricting Non-disclosure Agreement (Sexual Harassment at Work) Act 2025, passed by the Victorian Government in November 2025, will restrict the circumstances in which NDAs relating to workplace sexual harassment can be entered into and enforced.

The Act, which is the first of its kind in Australia and among the first in the world, aims to minimise the psychological and social impact of workplace sexual harassment on workers, recognise their vulnerability, and empower them in negotiations with employers to enter into workplace NDAs.

This reform was introduced in response to the Ministerial Taskforce on Workplace Sexual Harassment which, as explored in our previous insight, found that NDAs are often misused to silence victims, protect employer reputations, and avoid liability.

When does the Act apply?

The Act will apply to an NDA if it relates to workplace sexual harassment that is "connected to" Victoria, meaning:

• the complainant usually works in Victoria; or
• if not, the complainant is based in Victoria for work; or
• if not, the principal place of business of the complainant's employer is in Victoria; or
• if not, the workplace sexual harassment occurs or allegedly occurs in Victoria.

The Act will not apply retrospectively.

What is an NDA?

Under the Act, an NDA is an agreement, or any part or term of an agreement, that has the purpose or effect of preventing a party from disclosing certain information about workplace sexual harassment. Common examples of NDAs include non-disclosure clauses and non-disparagement clauses in settlement agreements.

Termed "workplace NDAs", the Act primarily concerns NDAs entered into between a complainant and the complainant's employer or the respondent. Other NDAs dealt with by the Act include those between the complainant's employer and the respondent only, as well as those contained in an employment contract.

When can a workplace NDA be entered into?

The Act sets down preconditions that must be met before a workplace NDA can be entered into. These include:

• the complainant must request to enter into the workplace NDA;
• it must be the complainant's "express wish and preference" to enter into the workplace NDA;
• the complainant must receive a copy of the prescribed workplace NDA information statement (not yet published);
• unless otherwise agreed, the complainant must be given at least 21 days to review the workplace NDA;
• each party to the workplace NDA must acknowledge that the above preconditions have been met using the prescribed acknowledgement form (not yet published); and
• the complainant must not be influenced or pressured to request to enter, or decide to enter, the workplace NDA.

When will a workplace NDA be unenforceable?

The Act makes parts of a workplace NDA unenforceable against a complainant in two situations.

1. Firstly, where the preconditions were not met, any term in a workplace NDA that prevents the complainant from disclosing "material information", being the identity of the respondent and the details of the sexual harassment, will be unenforceable.

2. Secondly, regardless of whether the preconditions were met, any term in a workplace NDA that prevents the complainant from making a "permitted disclosure" will be unenforceable. The Act recognises three categories of permitted disclosures.

A complainant can make general disclosures about the identity of the respondent and details about the sexual harassment to permitted recipients, including legal practitioners, medical professionals, support persons, religious ministers, WorkSafe, anticorruption and integrity bodies, WorkSafe, and Victoria Police.

A complainant is also permitted to make disclosures to certain government bodies, including the Australian Human Rights Commission, Fair Work Commission, and Fair Work Ombudsman. A complainant can disclose details about the sexual harassment to these bodies, but not the identity of the respondent or the complainant's employer.

Importantly, neither of these permitted disclosures extend to "protected information", being the identity of the respondent if they were aged under 18 years old at the relevant time, and the amount of any financial compensation payable in respect to the sexual harassment.

The exception to the latter is financial disclosures, as a complainant is permitted to disclose the amount of any financial compensation to Centrelink, a financial advisor, or a tax agent for the purpose of obtaining advice.

What about NDAs between employers and respondents?

As mentioned above, the Act also deals with - albeit to a lesser extent - NDAs relating to the disclosure of material information about workplace sexual harassment that is entered into between a complainant's employer and the respondent.

An NDA of this kind will not be enforceable against the complainant's employer to the extent that it would prevent the employer from:

• conducting an investigation into the workplace sexual harassment; or
• disclosing material information about the workplace sexual harassment to a prospective employer of the respondent (where the complainant's allegations have been substantiated). This does not apply with respect to protected information.

How can a complainant raise unenforceability or terminate a workplace NDA?

The Act provides two mechanisms through which a complainant can challenge a workplace NDA.

1. The first is the breach notice regime. Where any of the preconditions were not met, the complainant can give each other party to the workplace NDA a breach notice in the prescribed form. The recipient (the complainant's employer and/or the respondent) then has 30 days to apply to the Magistrates’ Court for an order that the preconditions were met. If the recipient does not apply within that period, the preconditions are taken not to have been met and the relevant terms of the workplace NDA become unenforceable. Alternatively, the Magistrates' Court may order that the preconditions were met.

2. The second is the termination process. After 12 months from the date a workplace NDA was entered into, regardless of whether the preconditions were met, the complainant can terminate the workplace NDA to the extent that it prevents the disclosure of material information. To do so, the complainant must give each other party to the workplace NDA written notice in the approved form at least seven days before the termination takes effect. As with the unenforceability provisions, termination does not extend to protected information.

Importantly, if a workplace NDA is unenforceable or terminated in part, this does not affect the validity and enforceability of the rest of the workplace NDA, including any broader settlement agreement. The effect of unenforceability or termination is the same for any NDA captured by the Act.

What does this mean for employers?

The key practical implication for employers is that, in Victoria, NDAs cannot be treated as a standard or routine part of the dispute resolution process in matters relating to workplace sexual harassment.

A workplace NDA will only be available where the complainant requests it as their express wish and preference, they have been provided the required information statement and review period, and they have not been pressured or influenced to enter into it. Employers should be aware that, even where these preconditions have been met, a workplace NDA cannot prevent a complainant from making permitted disclosures. Any terms to this effect are automatically unenforceable against a complainant.

In practice, employers should develop a clear procedure to deal with the use of NDAs in the context of sexual harassment and educate relevant employees about the various preconditions that will apply in Victoria. In addition, existing templates and their use in Victoria should be carefully reviewed to ensure that any confidentiality terms comply with the requirements of the Act.

For more information on the changes outlined above and how they may impact your organisation, please contact a member of our Workplace Relations & Safety team.