Are there changes to the use of non-disclosure agreements in harassment cases?

Yes. The Act provides that certain contractual terms seeking to prevent workers from alleging or disclosing work-related harassment or discrimination will be void. This change is due to come into force during 2027, with exceptions and detailed rules to be set out in regulations.

Once commenced, the provisions will apply to confidentiality clauses in employment contracts, settlement agreements and other agreements between employers and workers, subject to any statutory exceptions for permitted agreements.

The aim is to prevent employers from using NDAs to silence workers who have experienced harassment or discrimination or to conceal unacceptable workplace behaviour. Regulations will define any permitted exceptions and safeguards.

The changes do not prevent employers from using confidentiality clauses to protect legitimate commercial information or trade secrets. They are specifically aimed at preventing the misuse of NDAs to stop workers speaking out about harassment and discrimination.

What this means for union reps

• Members should no longer feel pressured into signing agreements that prevent them from speaking about workplace harassment or discrimination.
• Reps should encourage members to seek union advice before signing any settlement agreement or confidentiality clause.
• Where a member has experienced harassment, reps can help ensure they understand their rights and are not discouraged from reporting concerns or seeking support.
• The reforms should help create a more open workplace culture by making it harder for employers to use NDAs to conceal harassment or discrimination.