Australia: Increasing WorkSafe oversight and decreasing NDAs - Victorian Government responds to recommendations of the Ministerial Taskforce on Workplace Sexual Harassment

This week, the Victorian Government released its response to the recommendations of the Ministerial Taskforce on Workplace Sexual Harassment. In its response, the Victorian Government has acknowledged that work-related gendered violence and workplace sexual harassment are OHS issues, and accepted 21 of the Taskforce’s 26 recommendations (either entirely, or in part or in principle).

Most notably, the Victorian Government has responded that it will:

• consider options to restrict the use of non-disclosure agreements (NDAs) in workplace sexual harassment cases in Victoria; and
• adopt recommendations aimed at recognising sexual harassment as an OHS issue and increasing WorkSafe’s capacity to take a lead role in addressing workplace sexual harassment (in collaboration with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC)).

The key recommendations and responses

The Taskforce, which was established in March 2021, made 26 recommendations aimed at preventing, and improving responses to, workplace sexual harassment in Victoria. In responding to the Taskforce recommendations, the Victorian Government:

• accepted 12 recommendations;
• accepted two recommendations in part;
• accepted seven recommendations in principle;
• noted one recommendation; and
• stated that four recommendations require further consideration.

Of the recommendations which the Victorian Government accepted, there are two key proposals that Victorian employers should be across:

1. Restrictions on NDAs: The Victorian Government has accepted in principle the recommendation that legislative amendments be introduced to restrict the use of NDAs in workplace sexual harassment cases in Victoria.

Echoing concerns raised in the Respect@Work report, the Taskforce noted that NDAs have been "misused to silence victim-survivors, protect employer reputations, avoid full liability and hide serial offending". Their recommendation envisages that the Victorian Government will consult the Irish Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 and lessons from other jurisdictions (such as the USA and the UK) when determining the model for this reform.

Although this recommendation has been accepted “in principle”, the Victoria Government response does not commit to legislative reform, noting the complexity of NDAs and the significant further work required before any legislative changes are made to regulate NDAs. That said, the Government has expressed support for undertaking this further work, suggesting changes to restrict the use of NDAs might be on the horizon. Any legislative change which flows from this recommendation would be the first of its kind in Australia.

2. Increasing WorkSafe’s role in addressing workplace harassment:

The Victorian Government has accepted recommendations that will give WorkSafe a more prominent role in the prevention and response to incidents of workplace sexual harassment. The accepted recommendations span a range of initiatives, and in many cases dovetail with actions being adopted by WorkSafe to support the impending psychological health regulations.

The accepted recommendations include:

• • the introduction of workplace sexual harassment training for Health and Safety Representatives (HSRs) (in addition to their entitlement to attend the annual HSR Refresher course as specified in s 67 of the Occupational Health and Safety Act 2004 (Vic);
  • strengthening WorkSafe’s existing guidance on workplace sexual harassment, including through a psychological Compliance Code to support the introduction of the upcoming psychological health regulations;
  • increasing the capabilities and resourcing of WorkSafe’s psychological inspectorate;
  • supporting WorkSafe’s regulatory focus on industries and population groups who are disproportionately affected by work-related gendered violence and sexual harassment (for example, male-dominated or customer-facing industries);
  • WorkSafe developing an implementation strategy that considers the intersection of workplace sexual harassment with other planned initiatives, such as: the introduction of psychological health regulations, the current focus on high-risk industries within WorkSafe’s Mental Health Strategy, and the growth of WorkSafe’s multicultural engagement capabilities;
  • further expanding WorkSafe’s WorkWell program to provide employers with practical tools to assist them with preventing sexual harassment in the workplace; and
  • publishing WorkSafe’s work-related gendered violence and sexual harassment data.

The Victorian Government response also accepts the recommendation for increased collaboration between WorkSafe and VEOHRC to jointly address sexual harassment, including by:

• • the development of guidelines for employers on their duties to prevent sexual harassment under the Occupational Health and Safety Act 2004 (Vic) and the Equal Opportunity Act 2010 (Vic);
  • a WorkSafe review, with VEOHRC, into prevention activities in relation to workplace sexual harassment; and
  • developing a workplace sexual harassment enforcement strategy with VEOHRC that articulates their joint regulation of workplace sexual harassment.

Notably, however, the Government does not accept the Taskforce’s recommendation to introduce mandatory incident notifications (MINs) for workplace sexual harassment.

So, what does this mean for employers?

The Victorian Government response to the Taskforce recommendations represents yet another push towards legislative and regulatory change to address the scourge of workplace sexual harassment.  The Victorian Government’s focus on sexual harassment as an OHS issue locks in the broadening role of WorkSafe in this space, to work in conjunction with VEOHRC and other agencies.

Whilst the Victorian Government’s commitment to consider restricting NDAs has attracted headlines this week, including tweets from the Premier highlighting the importance of this issue to Government, the form and location of legislative changes remains to be seen. Although, with NDAs in sexual harassment cases continuing to attract scrutiny, in our experience best practice employers are already adopting a more nuanced approach towards confidentiality provisions.

This article was prepared by Steve Bell, Partner, Lucy Boyd, Senior Associate, and Billy Stafford, Vacation Clerk.