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Australia: Growing WorkSafe oversight and lowering NDAs – Victorian Authorities responds to suggestions of the Ministerial Taskforce on Office Sexual Harassment


This week, the Victorian Authorities launched its response to the suggestions of the Ministerial Taskforce on Office Sexual Harassment. In its response, the Victorian Authorities has acknowledged that work-related gendered violence and office sexual harassment are OHS points, and accepted 21 of the Taskforce’s 26 suggestions (both totally, or partly or in precept).

Most notably, the Victorian Authorities has responded that it’ll:

  • think about choices to limit using non-disclosure agreements (NDAs) in office sexual harassment circumstances in Victoria; and
  • undertake suggestions geared toward recognising sexual harassment as an OHS difficulty and rising WorkSafe’s capability to take a lead position in addressing office sexual harassment (in collaboration with the Victorian Equal Alternative and Human Rights Fee (VEOHRC)).
The important thing suggestions and responses

The Taskforce, which was established in March 2021, made 26 suggestions geared toward stopping, and enhancing responses to, office sexual harassment in Victoria. In responding to the Taskforce suggestions, the Victorian Authorities:

  • accepted 12 suggestions;
  • accepted two suggestions partly;
  • accepted seven suggestions in precept;
  • famous one advice; and
  • said that 4 suggestions require additional consideration.

Of the suggestions which the Victorian Authorities accepted, there are two key proposals that Victorian employers must be throughout:

  1. Restrictions on NDAs: The Victorian Authorities has accepted in precept the advice that legislative amendments be launched to limit using NDAs in office sexual harassment circumstances in Victoria.
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Echoing issues raised within the Respect@Work report, the Taskforce famous that NDAs have been “misused to silence victim-survivors, defend employer reputations, keep away from full legal responsibility and conceal serial offending“. Their advice envisages that the Victorian Authorities will seek the advice of the Irish Employment Equality (Modification) (Non-Disclosure Agreements) Invoice 2021 and classes from different jurisdictions (such because the USA and the UK) when figuring out the mannequin for this reform.

Though this advice has been accepted “in precept”, the Victoria Authorities response doesn’t decide to legislative reform, noting the complexity of NDAs and the numerous additional work required earlier than any legislative modifications are made to manage NDAs. That stated, the Authorities has expressed help for enterprise this additional work, suggesting modifications to limit using NDAs is likely to be on the horizon. Any legislative change which flows from this advice could be the primary of its sort in Australia.

  1. Growing WorkSafe’s position in addressing office harassment:

The Victorian Authorities has accepted suggestions that may give WorkSafe a extra distinguished position within the prevention and response to incidents of office sexual harassment. The accepted suggestions span a spread of initiatives, and in lots of circumstances dovetail with actions being adopted by WorkSafe to help the upcoming psychological well being laws.

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The accepted suggestions embrace:

    • the introduction of office sexual harassment coaching for Well being and Security Representatives (HSRs) (along with their entitlement to attend the annual HSR Refresher course as laid out in s 67 of the Occupational Well being and Security Act 2004 (Vic);
    • strengthening WorkSafe’s current steering on office sexual harassment, together with by means of a psychological Compliance Code to help the introduction of the upcoming psychological well being laws;
    • rising the capabilities and resourcing of WorkSafe’s psychological inspectorate;
    • supporting WorkSafe’s regulatory concentrate on industries and inhabitants teams who’re disproportionately affected by work-related gendered violence and sexual harassment (for instance, male-dominated or customer-facing industries);
    • WorkSafe creating an implementation technique that considers the intersection of office sexual harassment with different deliberate initiatives, akin to: the introduction of psychological well being laws, the present concentrate on high-risk industries inside WorkSafe’s Psychological Well being Technique, and the expansion of WorkSafe’s multicultural engagement capabilities;
    • additional increasing WorkSafe’s WorkWell program to offer employers with sensible instruments to help them with stopping sexual harassment within the office; and
    • publishing WorkSafe’s work-related gendered violence and sexual harassment information.

The Victorian Authorities response additionally accepts the advice for elevated collaboration between WorkSafe and VEOHRC to collectively handle sexual harassment, together with by:

    • the event of tips for employers on their duties to stop sexual harassment below the Occupational Well being and Security Act 2004 (Vic) and the Equal Alternative Act 2010 (Vic);
    • a WorkSafe evaluate, with VEOHRC, into prevention actions in relation to office sexual harassment; and
    • creating a office sexual harassment enforcement technique with VEOHRC that articulates their joint regulation of office sexual harassment.
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Notably, nevertheless, the Authorities doesn’t settle for the Taskforce’s advice to introduce necessary incident notifications (MINs) for office sexual harassment.

So, what does this imply for employers?

The Victorian Authorities response to the Taskforce suggestions represents one more push in direction of legislative and regulatory change to deal with the scourge of office sexual harassment.  The Victorian Authorities’s concentrate on sexual harassment as an OHS difficulty locks within the broadening position of WorkSafe on this area, to work at the side of VEOHRC and different businesses.

While the Victorian Authorities’s dedication to contemplate proscribing NDAs has attracted headlines this week, together with tweets from the Premier highlighting the significance of this difficulty to Authorities, the shape and site of legislative modifications stays to be seen. Though, with NDAs in sexual harassment circumstances persevering with to draw scrutiny, in our expertise greatest observe employers are already adopting a extra nuanced method in direction of confidentiality provisions.

This text was ready by Steve Bell, Associate, Lucy Boyd, Senior Affiliate, and Billy Stafford, Trip Clerk.

Steve Bell
Anthony Wood
Nerida Jessup
Aaron Anderson
Olga Klimczak
Lucy Boyd