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From 1 July 2026, Victorian employers can no longer treat confidentiality as a standard term when settling workplace sexual harassment complaints.
The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) significantly limits when a non-disclosure agreement (NDA) can prevent a complainant from speaking about workplace sexual harassment.
For employers, the practical consequence is clear: settlement processes, deed templates and the way confidentiality is discussed during negotiations may all need to change.
Key takeaways for employers using workplace NDAs
- Employers cannot ask or suggest that a complainant enter into an NDA preventing disclosure of workplace sexual harassment. The complainant must request it.
- Six statutory preconditions must be satisfied before such an NDA can be enforceable against the complainant.
- Employers should review settlement deed templates, including confidentiality and non-disparagement clauses, rather than continuing to use broad standard wording.
- A complainant who enters into an NDA can generally end the relevant confidentiality restrictions after 12 months by giving the required notice.
- Existing HR and settlement processes should also be reviewed so managers, HR teams and advisers do not inadvertently pressure a complainant to request confidentiality.
What changed to Victoria’s workplace NDA laws on 1 July 2026?
The Restricting Non-disclosure Agreements (Sexual Harassment at Work) Act 2025 (Vic) commenced on 1 July 2026.
It applies to NDAs relating to workplace sexual harassment connected to Victoria and is intended to prevent confidentiality from being used as the default approach to resolving sexual harassment complaints.
An NDA can be a standalone agreement, but the legislation is broader than documents specifically called “non-disclosure agreements”. It can also capture confidentiality clauses or non-disparagement clauses within a settlement deed or other agreement where their purpose or effect is to prevent a complainant from disclosing material information about workplace sexual harassment.
The new rules do not prevent employers from settling sexual harassment complaints. Employers can still resolve claims, obtain releases and enter into settlement agreements. What has changed is the ability to make confidentiality about the sexual harassment a standard part of that bargain.
Can employers still use NDAs in workplace sexual harassment settlements?
Yes, but the starting point has changed.
An employer or its legal representative cannot ask or suggest that the complainant enter into an NDA preventing them from discussing their experience of workplace sexual harassment.
The request must come from the complainant.
The complainant does not necessarily have to use the words “NDA” or “non-disclosure agreement”. A request for privacy or confidentiality may be enough. However, it must genuinely reflect the complainant’s choice and preference.
This means employers should be particularly careful about how confidentiality is raised during settlement discussions. A process that previously treated confidentiality as a standard provision in every deed may no longer be appropriate.
What must employers change in their workplace sexual harassment settlement process?
If a complainant requests confidentiality, employers need to follow a specific process before an NDA of this kind is entered into.
There are six statutory preconditions.
The complainant must request the NDA
The request must originate from the complainant. The employer or its advisers should not propose an NDA preventing disclosure of the workplace sexual harassment.
The NDA must be the complainant’s express choice and preference
A request alone is not enough. The complainant must genuinely want confidentiality and remain free to change their mind before signing.
Employers must provide the workplace NDA information statement
After an NDA has been requested, but before it is entered into, the complainant must be given the Victorian Government’s workplace NDA information statement.
The statement explains the complainant’s rights and the restrictions applying to workplace NDAs.
The complainant must have at least 21 days to consider the NDA
The complainant must ordinarily have at least 21 days to consider the proposed NDA and an opportunity to obtain legal advice.
The complainant can request a shorter period or waive the review period. The employer should not ask them to shorten or waive it.
The parties must complete the approved NDA acknowledgement
Before the NDA is entered into, each party must sign the approved acknowledgement confirming that the relevant preconditions have been satisfied.
The complainant must also be provided with copies of the signed NDA and acknowledgement.
Employers must not pressure a complainant to agree to confidentiality
An employer cannot pressure a complainant to request or enter into an NDA.
That restriction affects not only what is said during negotiations, but potentially how the settlement is structured.
For example, employers must not offer a higher settlement payment if the complainant agrees to confidentiality, or a lower amount if they do not. Similarly, other employment-related benefits cannot be made conditional on the complainant requesting an NDA.
For employers and HR teams, this is why the reform is not simply a matter of inserting new wording into an existing deed. The negotiation process itself needs to comply.
What should employers change in workplace settlement deed templates?
Employers who use standard deeds to resolve workplace disputes should review them rather than waiting until the next sexual harassment complaint arises.
In particular, consider the following areas.
Remove confidentiality as an automatic settlement term
A deed should not automatically require a complainant to keep their experience of workplace sexual harassment confidential.
Where confidentiality is requested by the complainant, the drafting and process need to reflect the statutory requirements.
Review broad confidentiality and non-disparagement clauses
The legislation is concerned with the effect of a provision, not simply its title.
A broadly drafted confidentiality or non-disparagement clause may therefore be caught if it has the effect of preventing a complainant from disclosing material information about the sexual harassment.
Standard clauses used across all employment settlements should be reviewed with this in mind.
Make sure workplace NDAs are written in plain language
A workplace NDA covered by the legislation must be written in plain language.
Employers should therefore review provisions that rely on lengthy, technical or heavily qualified confidentiality wording and ensure the complainant can readily understand what the NDA does and does not restrict.
Make sure settlement deeds preserve permitted disclosures
Even where a valid NDA is entered into, the legislation allows certain disclosures to specified people and organisations.
Depending on the type of information being disclosed, these can include disclosures to police, lawyers and health professionals, certain government or regulatory bodies, and friends or family providing personal support where the statutory conditions are met.
Settlement drafting should not suggest that the confidentiality obligation is absolute.
Deal separately with information that can remain protected
The legislation treats some information differently, including the amount of financial compensation paid in respect of the sexual harassment and, in certain circumstances, the identity of a respondent who was under 18 at the relevant time.
This means employers should avoid assuming that all information covered by a settlement is subject to exactly the same rules.
Can an employee end a workplace NDA after settlement?
Yes.
For NDAs entered into after the new laws commenced, a complainant can generally terminate the non-disclosure restrictions relating to workplace sexual harassment within any settlement document at any time once at least 12 months have passed since the date the agreement was entered into.
They must give at least seven days’ written notice using the approved form and do not have to provide a reason.
Importantly, terminating the NDA does not undo the broader settlement or the document as a whole, only the confidentiality provisions over the sexual harassment.
If the confidentiality provision formed part of a settlement deed, the remaining terms of the deed can continue to operate. Existing confidentiality obligations surrounding the amount of any financial compensation and the identity of the respondent (if they were under the age of 18 at the time of the conduct) will survive the termination of the NDA.
The complainant is also not required to repay settlement money simply because the NDA is terminated.Any terms requiring payment or a penalty because the NDA becomes unenforceable or is terminated are void.
Employers should therefore review any existing template provisions that assume confidentiality will necessarily continue indefinitely or that attach repayment obligations to the loss of confidentiality.
What if a workplace settlement covers sexual harassment and other complaints?
Workplace disputes often involve more than one allegation.
For example, a complaint may involve sexual harassment together with bullying, discrimination, adverse action or other workplace conduct.
The presence of a sexual harassment allegation does not necessarily prevent confidentiality provisions from dealing with every other aspect of the dispute.
However, where an agreement has the purpose or effect of preventing disclosure of material information about workplace sexual harassment, the new restrictions apply to that part of the agreement.
This makes careful drafting particularly important in mixed-complaint settlements. A broad confidentiality clause covering the entire dispute may create problems even where some of the underlying allegations are not themselves subject to the new NDA regime.
Do Victoria’s new NDA rules affect employment contracts?
Potentially, yes.
The legislation is not limited to settlement deeds.
A confidentiality term in an employment contract cannot be used to prevent a worker from disclosing material information about workplace sexual harassment in circumstances covered by the Act, subject to the rules relating to protected information.
Employers should therefore consider whether standard employment agreement confidentiality provisions are drafted so broadly that they could be interpreted as restricting these disclosures.
The legislation also affects agreements between an employer and the person accused of the harassment. An NDA with a respondent cannot prevent the employer from investigating workplace sexual harassment. Where allegations are substantiated, an NDA also cannot be used to prevent specified disclosure of the conduct to a prospective employer of the respondent.
What happens if an employer does not follow the workplace NDA requirements?
An employer should not assume that a signed confidentiality clause will necessarily be enforceable.
If the statutory preconditions for a workplace NDA have not been met, the NDA may be unenforceable against the complainant to the extent that it restricts disclosure of material information about the workplace sexual harassment.
A complainant can also issue a formal breach notice alleging that the preconditions were not satisfied.
The recipient then has 30 days to apply to the Industrial Division of the Magistrates’ Court for a determination that the preconditions were met. If no application is made within that period, the NDA is deemed unenforceable in the relevant respect.
This makes record-keeping important. Employers should be able to demonstrate not only what was signed, but also how the NDA was requested and how the statutory process was followed.
What should Victorian employers do now about workplace NDAs?
Employers who may deal with workplace sexual harassment complaints should review their approach before the next settlement negotiation.
In practical terms, this means:
- reviewing standard settlement deeds and confidentiality clauses;
- removing any assumption that confidentiality will automatically form part of a sexual harassment settlement;
- reviewing non-disparagement provisions for the same issue;
- establishing a process for providing the prescribed information statement;
- building the 21-day review period and approved acknowledgement into the settlement process;
- ensuring NDAs are written in plain language;
- training HR teams and managers on what they can and cannot say when discussing confidentiality;
- reviewing record-keeping so the employer can establish that the statutory preconditions were followed;
- checking standard employment agreement confidentiality provisions; and
- ensuring legal advice is obtained where a settlement involves a combination of sexual harassment and other workplace allegations.
When should an employer seek legal advice about a workplace NDA?
Ideally, before settlement terms are proposed.
The legislation regulates how an NDA comes about as well as what the final document says. A well-drafted deed cannot necessarily correct a negotiation process that failed to meet the statutory requirements.
Employers should consider obtaining advice where a sexual harassment complaint is being resolved, where a complainant asks for confidentiality, or where an existing settlement template has not been reviewed since the new laws commenced.
How can MST Lawyers help employers comply with Victoria’s workplace NDA laws?
MST Lawyers’ Workplace Relations and Employment team can assist employers to draft or review settlement deed and employment agreement templates, update internal settlement processes and advise on negotiations involving workplace sexual harassment complaints.
If your organisation uses standard settlement deeds or confidentiality clauses, now is the time to check whether they reflect the new Victorian requirements.
Contact MST Lawyers’ Workplace Relations and Employment team to review your settlement templates and processes before your next workplace sexual harassment matter arises.
Frequently asked questions about workplace NDAs in Victoria
Are NDAs banned in Victorian workplace sexual harassment settlements?
No. An NDA can still be entered into, but an employer cannot impose it as a standard condition of settlement. Where the NDA restricts a complainant from disclosing workplace sexual harassment, the complainant must request it and the statutory requirements must be followed.
Can an employer offer more money in return for an NDA?
Employers cannot use settlement structures to pressure or influence a complainant to request an NDA. This includes offering more money or a more generous settlement offer where confidentiality is requested and less where it is not.
Do Victoria’s new NDA laws apply to existing settlement deeds?
The new regime applies to NDAs entered into after the legislation commenced on 1 July 2026. It does not operate retrospectively in relation to earlier NDAs.
Do Victoria’s workplace NDA laws apply to interstate employers?
They can. The legislation applies where the workplace sexual harassment is sufficiently connected to Victoria. This can include an interstate employer whose complainant usually works or is based in Victoria for work.
Can a complainant terminate a workplace NDA after settlement?
Generally, yes. Once 12 months have passed since the date the settlement agreement was entered into, a complainant can terminate the relevant workplace NDA at any time by giving at least seven days’ written notice using the approved form. The broader settlement agreement, including any confidentiality obligations surrounding the amount of any financial compensation paid to the complainant, and the name of the person who harassed you (if they were under 18 at the time of the harassment), can continue to operate.
Reviewed by: Caryna Ha, Lawyer, MST Lawyers and James Sanders, Principal, MST Lawyers
This article provides general information only and is not legal advice. Employers should obtain advice about their particular circumstances.
