Working Women’s Centres across Australia are calling for national law reform that regulates NDAs in the following way

Everyday Working Women’s Centres advise and represent women experiencing sexual harassment and discrimination in the workplace. Through this work, we know that women are often on the back foot—confronting power imbalances, legal costs risks, lengthy delays, unfair cross examination and the prospect of having to defend themselves and their experiences in a court room. We also know that employers and perpetrators regularly insist on non-disclosure agreements that silence our clients.

National law reform is urgently required to ensure women across the country can speak up. These recommendations are grounded in the experience of our activist network- a network of women who have experienced sexual harassment and discrimination and were either unfairly pressured or coerced to sign non‑disclosure agreements.

Our recommendations are informed by our network’s lawyers, educators, policy leaders and advocates and further informed by a comprehensive review of best‑practice NDA reform from jurisdictions around the world. We believe these recommendations are the blueprint for change.

The WWC Network has outlined 14 key legislative recommendations that cover the above factors, as follows.The legislation must:

prohibit the use of NDAs to resolve a sexual harassment or discrimination complaint unless requested by the victim-survivor;
ensure that victim-survivors have access to legal advice of their choosing prior to entering into an NDA;
address the misuse of non-disparagement as well as confidentiality obligations;
prohibit employers and other parties from coercing, pressuring or inducing a victim-survivor to enter into an NDA;
define ‘workplace’ broadly across all workplaces to include a spectrum of working relationships, including traditional employees as well as volunteers, students, apprentices, contractors and labour-hire employees. This must include government agencies or public officials as employers;
allow victim-survivors who enter into NDAs, or who have previously entered into NDAs, to disclose their experiences to their family, friends, support persons, medical and legal practitioners, and trade unions;
allow victim-survivors who enter into NDAs to choose the period of time, if any, they must maintain confidentiality;
provide victim-survivors with a 60-day cooling off period during which they may withdraw from the NDA without penalty;
provide that NDAs be drafted in plain language that is easily understood and accessible;
prohibit NDAs from putting the safety of others at risk or from stopping employers from complying with their legal duties to respond to sexual harassment and discrimination in the workplace;
provide clear and applicant accessible options to enforce the legislation;
require the Federal Government to review the legislation within a specified period following commencement;
require workplaces to report to their relevant regulator on their use of NDAs in sexual harassment and discrimination matters; and
sufficiently fund Working Women’s Centres to provide training on these reforms.

It gives women agency in their workplace:

Victim/Survivors must be given genuine and proper agency when resolving a workplace sexual harassment or discrimination dispute, with the support of an independent lawyer

It stops the silencing of women:

Victim/Survivors should be able to disclose and speak about their workplace experiences to their family, friends, support persons, the police, medical and legal advisors, and their trade union. Employers must address issues and take preventative steps to stop sexual harassment and discrimination in the first place. To do this, we have to stop the silencing of women.

It is practical and holistic:

The legislation must provide a pathway for further advocacy to eliminate sexual harassment and discrimination in workplaces. This includes ensuring there is proper resourcing for education, reporting and compliance at an industry and workplace level.