An end to the NDA in workplace sexual harassment cases?

The Australian Human Rights Commission has called for restrictions on the use of confidentiality or non-disclosure agreements (NDAs) in workplace sexual harassment cases, following the release of its ‘Speaking from Experience’ Report (Report) on 25 June 2025.[1]

The Report outlines a number of key recommendations to address workplace sexual harassment, including by reducing barriers to information, safety and support for victim survivors.

The focus of this article is the recommendation for law reform to restrict the use of NDAs in workplace sexual harassment cases, to increase workplace transparency and protect workers’ rights.

What is an NDA?

An NDA (or confidentiality agreement) is an agreement between parties which creates a legal obligation preventing parties from disclosing information to third parties.

They are regularly requested by employers in workplace sexual harassment cases to prevent victim-survivors from speaking up and damaging the reputation of employers.

The issue with NDAs

The Report found that NDAs are almost always requested by the employer or perpetrator as protection, and not by the person who has been subject to the harassment.

It was also found that non-disclosure agreements have acted to prevent victim-survivors of harassment from accessing justice and contributing to systemic change.

Further findings indicated that the experiences of some victim-survivors entering into NDAs involved:

• feelings of isolation and shame where information was required to be kept secret;
• difficulties in seeking closure for themselves; and
• a lack of accountability by perpetrators.

The Irish model

The issues described above were previously contemplated in other jurisdictions including Ireland, the United States and Canda where they implemented reforms to restrict the use of NDAs in sexual harassment cases in certain settings, such as workplaces and higher education institutions.

In addition to restricting employers from requesting an NDA,the Irish model imposes a number of conditions that must be met for an NDA to be enforceable in the context of workplace sexual harassment, including requiring employers to pay for the employee to receive independent written legal advice.

Proposed Australian reforms

It is proposed that limiting the use of NDAs in workplace sexual harassment cases will:

• combat the isolation often felt by victim-survivors by enabling them to speak about their experiences;
• encourage closure; and
• increase transparency surrounding workplace harassment.

Accordingly, substantive reforms to the Sex Discrimination Act 1984 (Cth) (Act) and other industrial relations laws have been recommended to increase workplace transparency by limiting the use of NDAs in line with the Irish Employment Equality Act 1998.

The proposed reforms if enacted will prevent employers from entering into an NDA with an employee who has experienced or made allegations of sexual harassment or discrimination, unless it is the express wish and preference of that employee.

Practical consequences of reforms

There is concern that restricting the use of NDAs may reduce the bargaining power of victim-survivors of harassment in negotiating a settlement in exchange for compensation. While this may be a consequence of a total ban of NDAs in workplace harassment cases, under the proposed model, a person subject to the harassment may expressly propose an NDA.

Furthermore, the requirement for employers to pay for an employee to receive written legal advice before entering into an NDA would ensure victim-survivors knowingly accept the consequences of an NDA but retain their bargaining power in settlement negotiations.

Ultimately, the proposed reforms may not materially change the way negotiations and settlement take place following workplace harassment settlement negotiations; however, they will encourage victim-survivors to make educated decisions.

If the Irish model is followed, the proposed reforms would make employers financially liable for paying for legal advice for employees who voluntarily and expressly wish to enter into NDAs.

Conclusion

While these reforms have previously been proposed by other bodies such as the Australian Council of Trade Unions in 2024, the Australian Human Rights Commission’s indorsement of the reforms in the national context illustrates a growing push for these changes to be implemented in Australia.

The Australian Human Rights Commission’s Report highlights the growing appetite for workplace changes to support victim-survivors of workplace harassment and a demand for substantive reform in the area.

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[1]Australian Human Rights Commission, ‘Speaking from Experience’ Report dated 25 June 2025