Consultation into Restricting NDAs in Sexual Harassment Cases - ACTU Submission to Victorian Government Consultation into

Recommendation 2: The Victorian government should adopt the legislative model put forward by VTHC, which prohibits the use of NDAs unless initiated by and the expressed wish and preference of the victim survivor; and allows them to waive their own confidentiality in the future by giving 7 days’ notice, while the employer’s confidentiality obligations remain intact. [...] Often, these clauses are broadly drafted, and apply to the facts of sexual harassment, the identities of the parties, the circumstances and conduct leading to the claim, the negotiations leading up to a settlement, and the terms of the agreement. [...] In many cases testimonies span the entirety of workers’ experiences from the circumstances leading to the NDA, the negotiation process, the impact of the NDA at the time of entering it to its ongoing impact years or decades later. [...] The Featherstone/Bargon report sheds important light on how the legal profession has responded – or failed to respond – to the broader public and policy discussions on workplace sexual harassment and the extent to which NDAs obscure the scale of the problem. [...] For individual/ employer/ institutional defendants in harassment and discrimination cases, there are additional disincentives such as the disruption to the organisation and the fact that a court or tribunal hearing is in the public domain and will only serve to reveal and intensity attention on the information they want to keep hidden in the NDA.