Information for employers and respondents

What are my obligations under the Act?

There are new rules about the use of NDAs for workplace sexual harassment. These rules started on 1 July 2026 and are intended to protect complainants who have experienced sexual harassment at work or in connection with work. A complainant is the worker subject to or allegedly subject to sexual harassment and may also be a volunteer.

These rules apply to NDAs that stop complainants from talking about their experience of workplace sexual harassment. This includes a non-disparagement clause which has the purpose or effect of concealing this information. An NDA for workplace sexual harassment is not legal unless certain rules are met. These are called ‘preconditions’ and each one must be met for an NDA to be legal.

How the law applies in Victoria

The rules apply to an NDA and any other contract or agreement that stops a complainant from talking about their experience of workplace sexual harassment or naming the person who harassed them or allegedly harassed them (if they were 18 years or older at the time). The workplace sexual harassment must be connected to Victoria. The workplace sexual harassment is connected to Victoria if:

The complainant usually works in Victoria, or if they work in more than one jurisdiction, they are usually based in Victoria for work. This includes interstate employers if they have workers who usually work in Victoria, or are based in Victoria for work.
If there is no jurisdiction in which the complainant usually works or is based for work, the principal place of business of the complainant’s employer is in Victoria.
If a connection cannot be established under the above 2 points, the workplace sexual harassment occurs or allegedly occurs in Victoria.

The law does not apply to workplace sexual harassment which occurs in Victoria, but where a worker usually works in another state or is based in another state for work.

To determine whether a worker usually works in Victoria regard may be had to their work history over the previous 12 months, and the intentions of the worker and the employer (for example, where the employment contract specifies work is to be performed).

Preconditions that must be met for an NDA to be enforceable

There are six preconditions that apply to NDAs that stop a complainant from:

talking about their experience of workplace sexual harassment or
naming the person who harassed them or allegedly harassed them (if they were 18 or over at the time of the harassment)

These are:

You (or your legal representatives) cannot ask or suggest that a complainant sign an NDA that prevents them from talking about their experience of workplace sexual harassment, including who harassed them (if that person was over 18 at the time).
Only the complainant can raise the option of this type of NDA.
A complainant does not need to specifically ask for an ‘NDA’ or a ‘non-disclosure agreement’. They may ask for ‘privacy’ or ‘confidentiality’. The request may also be verbal or written.
A complainant must have at least 21 days to review an NDA before signing it. The complainant can request that the review period is shorter, or they may decide they don’t need any time to review it before signing.
You (or your legal representatives) cannot ask for the 21-day period to be shortened or pressure the complainant to waive the review period. The 21-day review period is the minimum amount of time the complainant must have. You can agree to give them more time if they need it.
It's OK if, during this review period, the complainant changes their mind and doesn’t want the NDA. The complainant or their legal representative can also request or negotiate changes to the NDA.
You or your legal representatives cannot pressure a complainant to ask for or sign an NDA. It must be the complainant’s choice to enter the NDA, and they must request it without pressure or coercion.
Some examples of undue, or unfair pressure or influence could include:
- Offering two different settlement amounts one with more money if they request an NDA, or less money if they do not request an NDA
- Not giving a work reference unless they request an NDA
- Telling them ‘they won’t get a job in the industry again’ if they do not request an NDA
- Telling a worker that you won’t renew their work visa unless they sign an NDA.

What happens if you have not met the preconditions

If a complainant considers that the preconditions have not been met, they can issue each party to the NDA with a Notice of Breach of Preconditions.

What is a breach notice?

A breach notice is a notice that tells you that the complainant considers that the NDA you have entered with them is unenforceable against them because you have not complied with one or more of the preconditions.

What happens if you receive a breach notice

If you receive a breach notice you can contest it if you believe that the preconditions have been met.

To contest the breach notice you must make an application to the Industrial Division of the Magistrates' Court of Victoria for an order that the preconditions were met. To make an application please visit the Magistrates’ Court of Victoria website and complete Form 46A. You must make this application within 30 days of receiving the breach notice.

If you do not make an application within 30 days after receiving the notice, the preconditions will be taken not to have been met, and the NDA will not be enforceable against the complainant.

This means that the complainant will be able to talk about:

details of the workplace sexual harassment;
the name of the person who harassed them or allegedly harassed them

If an application to the Court is made, the complainant must wait for the Court to decide whether the preconditions were met. All parties will need to continue complying with the NDA until the Court says otherwise.

You should seek legal advice if you are considering contesting a notice.

What will continue to be confidential?

A complainant cannot issue a breach notice for information related to:

the amount of any financial compensation paid to them (for example, settlement money); and/or
the name of the person who harassed them or allegedly harassed them if they were under 18 at the time of the harassment.

The preconditions do not apply to this type of information.

If the NDA is part of a broader agreement (such as a settlement agreement), the rest of the agreement will also continue to apply.

The six preconditions don’t apply to some matters

You can ask a complainant to keep confidential:

any financial compensation paid to them (for example, settlement money); and/or
the name of the person who harassed them if that person was under 18 at the time at the time of the sexual harassment.

The preconditions don’t apply to NDAs about these two matters.

Who can a complainant talk to if they have signed an NDA?

Even if a complainant has requested and signed an NDA that meets all of the preconditions, there are still certain people and organisations that they can speak to. This is called a ‘permitted disclosure’ and it means that a complainant can talk to people such as Victoria Police, medical and legal professionals about what happened to them.

The law says what information they can share and who they can share it with.

A complainant will not be breaching their NDA if they make a permitted disclosure to any person or organisation on the list, regardless of what is written in the NDA.

The tables below list the different types of information that a complainant can share with certain people and organisations. This only applies to NDAs entered into after 1 July 2026.

Table 1 - General

A complainant can always share information about their experience of workplace sexual harassment with the people listed in this Table 1 without breaching the NDA (regardless of what the NDA says). A complainant can also share the name of the person who harassed them or allegedly harassed them, with the people in this Table 1, but only if the harasser was 18 years or older at the time of the harassment. However, when sharing information with anyone in this Table 1, a complainant cannot share information about the amount of financial compensation (for example, settlement money) that was paid to them, or the name of the person who harassed them if that person was under 18 at the time.
✓	An Australian legal practitioner (for example a lawyer/solicitor/barrister) for the purposes of obtaining legal advice
✓	A Victorian WorkCover agent
✓	An officer or employee of a registered trade union for the purposes of obtaining advice or assistance in relation to the workplace sexual harassment (for example your union organiser or industrial officer)
✓	Your employer or potential employer for the purposes of obtaining or maintaining work
✓	A friend or family member who has agreed to keep the information confidential for the purposes of obtaining personal support
✓	The Independent Broad-based Anti-Corruption Commission (IBAC)
✓	An integrity body, other than the Fair Work Commission, within the meaning of the Independent Broad-based Anti‑corruption Commission Act 2011
✓	A Joint Investigatory Committee within the meaning of section 3 of the Parliamentary Committees Act 2003 or a sub‑committee within the meaning of section 3(1) of that Act
✓	A mental health and wellbeing professional (such as a medical practitioner, registered psychologist, specialist sexual assault worker, paramedic or nurse) for the purposes of obtaining mental health or psychological support or treatment
✓	A minister of religion for the purposes of obtaining religious guidance or support
✓	The National Anti-Corruption Commission
✓	The Office of Public Prosecutions
✓	A registered medical practitioner for the purposes of obtaining medical treatment.
✓	The Victims of Crime Financial Assistance Scheme
✓	WorkSafe Victoria
✓	The Victorian Legal Services Board
✓	The Victorian Legal Services Commissioner
✓	Victoria Police

Table 2 - Certain government bodies

Table 3 – Financial persons and organisations (bodies)

When a complainant can end an NDA

If a complainant has signed an NDA and they want to end it, they can do so any time after 12 months from the date it was entered into. This right to end an NDA only applies to agreements entered into after the law commenced on 1 July 2026. The complainant does not need to provide you with a reason for wanting to end the NDA.

The complainant must give you at least 7 days' written notice before ending the NDA. The notice must be provided using the Notice of Termination of Workplace Non-Disclosure Agreement form.

If a complainant chooses to end the NDA, they do not have to repay any settlement money that has been paid to them. You also cannot ask them to pay you any money as compensation for ending the NDA.

What happens if a complainant ends the NDA

If a complainant decides to end the NDA, they will be able to share information about what happened to them, and the person who harassed them or allegedly harassed them (if they were over 18). If the NDA also required you to keep this information confidential, you will also be able to share this information. The NDA will effectively end for both you and the complainant.

You may wish to seek legal advice if you receive a termination notice. This may include advice on what legal obligations you still have and defamation risks. Defamation is where a person causes serious harm to another person’s reputation by publishing material about them that changes the way people feel about them. Publishing includes speaking, writing, drawing, photographing or blogging. Please visit the Victoria Legal Aid website for more information.

If an NDA is part of a broader agreement (such as a settlement agreement), the rest of the agreement will continue to apply. For example, if the complainant has agreed to keep confidential:

the amount of any financial compensation paid (for example, settlement money)
the name of the person who harassed them or allegedly harassed them if they were under 18 at the time of the harassment

they will be required to keep this information confidential even if they end an NDA.

NDAs which cover other forms of misconduct as well as sexual harassment

Where an incident of workplace sexual harassment occurs alongside other forms of misconduct such as bullying or discrimination, an NDA covering multiple allegations would be unenforceable to the extent that it prevented disclosure of information about:

the sexual harassment and
the person who committed or allegedly committed the harassment (if they were over 18 at the time).

This means that an NDA could operate to allow disclosure of information about the sexual harassment, while otherwise operating validly to prevent disclosure of any information that wasn’t about the sexual harassment (i.e. about the bullying or discrimination).

NDAs between an employer and respondent

If you are an employer, you cannot enter an NDA with a respondent which would have the effect of preventing you from undertaking an investigation into workplace sexual harassment. The law does not prohibit you from undertaking a confidential workplace investigation.

If allegations of workplace sexual harassment are substantiated, an NDA which stops you from disclosing information about the workplace sexual harassment to a future employer of the respondent will not be enforceable.

NDAs in employment contracts

An employer cannot include a non-disclosure term in an employment contract which prevents a complainant from disclosing:

their experience of workplace sexual harassment; and/or
naming the person who harassed them or allegedly harassed them (if they were 18 years or older at the time of the harassment).

Plain language

An NDA must be written in plain language. The NDA should avoid overly complex and technical language that would be hard for a complainant to understand.

Employers have responsibilities to prevent and respond to workplace sexual harassment

Employers have duties across various regulatory schemes to prevent and respond to workplace sexual harassment. There are laws which also provide protections and support for workers who experience workplace sexual harassment. Relevant legislation includes:

Equality and anti-discrimination legislation – Equal Opportunity Act 2010 (EO Act) and the Sex Discrimination Act 1984 (Cth)
Health and safety and workers compensation legislation – Occupational Health and Safety Act 2004 (OHS Act), Occupational Health and Safety (Psychological Health) Regulations 2025 (OHS (Psychological Health) Regulations), Workplace Injury Rehabilitation and Compensation Act 2013
Employment legislation – Fair Work Act 2009 (Cth)

Under the OHS Act employers must provide and maintain a working environment that is safe and without risks to health and safety. This includes physical and psychological risks to health. The OHS (Psychological Health) Regulations create specific obligations for Victorian duty holders to identify psychosocial hazards in the working environment and control associated risks. This includes sexual harassment. WorkSafe Victoria has developed a range of resources to provide employers with practical guidance on how to meet their health and safety duties under the OHS (Psychological Health) Regulations. Please visit the WorkSafe Victoria website for more information.

Under the EO Act all employers in Victoria have a duty to act to prevent sexual harassment in their workplace. This ‘positive duty’ requires employers to take proactive steps to eliminate sexual harassment and victimisation. For more information about your duties under the EO Act visit the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) website. VEOHRC’s comprehensive guideline on preventing and responding to workplace sexual harassment provides essential information and recommendations for small, medium and large organisations about how to comply with the positive duty (visit Sexual Harassment Guideline | Victorian Equal Opportunity and Human Rights Commission).

How to seek legal advice

You can seek legal support from:

Victoria Legal Aid (VLA) - VLA offers legal advice on workplace sexual harassment – you can call VLA Legal Help line 1300 792 387 or email equalitylaw@vla.vic.gov.au.
Your industry association.
A lawyer – The Law Institute of Victoria is the peak membership organisation for solicitors in Victoria. Visit the LIV website for helpful links and legal practitioner directories.

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Law, crime & justice

Updated 1 July 2026

A complainant can always share the amount of any financial compensation they will or have received (for example, settlement money) to the financial persons and organisations (bodies) in this Table 3 without breaching their NDA.
✓	Centrelink (Services Australia)
✓	A financial advisor for the purposes of obtaining financial advice.
✓	A tax agent for the purposes of obtaining tax advice.

A complainant can always share the following information to the people listed in this Table 2 without breaching their NDA: details about the sexual harassment provided that they do not share the following information (unless the NDA says that they can): the name of the person who committed the harassment or allegedly committed the harassment (regardless of their age) the name of their employer the amount of any financial compensation paid (for example, settlement money) in respect of the sexual harassment.
✓	Australian Human Rights Commission
✓	Fair Work Commission
✓	Office of the Fair Work Ombudsman
✓	Public Sector Gender Equality Commissioner
✓	Victorian Equal Opportunity and Human Rights Commission