Australia
Victoria - Restrictions on use of NDAs in workplace sexual harassment cases
Impact date: The Bill was passed in December 2025, and came into force on 20 May 2026.
In December 2025, the Victorian Government passed the Restricting Non-disclosure Agreements (Sexual Harassment at Work) Bill 2025.
The Bill is aimed at regulating and restricting the use of 'workplace non-disclosure agreements' (NDAs) in relation to allegations of workplace sexual harassment.
Key provisions in the Bill include:
- a prohibition on NDAs unless requested by the person complaining of sexual harassment ('complainant'), and it is their express wish and preference to enter into one
- a requirement for NDAs to be drafted in plain language
- the right for complainants to terminate an NDA after 12 months without repayment of any financial settlement
- the ability for complainants to disclose to certain individuals and entities, including Victoria Police, friends and family members, support organizations and legal and medical professionals notwithstanding the terms of the NDA
- a prohibition on employers exerting undue pressure or influence on complainants to enter into an NDA (including offering the complainant a higher settlement amount if they request an NDA or refusing to provide the worker with a work reference unless they agree to an NDA) and
- requiring an employer to provide a complainant with a mandatory information statement published by the Victorian Government and allowing the complainant a cooling-off period of at least 21 days before entering into an NDA
The legislation is not retrospective – accordingly, it does not affect the enforceability of NDAs executed before 20 May 2026.
Employer implications/action needed Employers should be aware of the new restrictions on the use of NDAs for Victorian-based employees in the context of workplace sexual harassment allegations, including appreciation of limitations on the continued operation even if lawfully entered into.
Employer risk If employers do not comply with the above requirements, the employee can give the employer a 'breach notice'. The employer will then have 30 days to confirm that the Act was complied with. Otherwise, the NDA will be unenforceable. The Bill does not include any financial penalties that could be imposed on an employer for non-compliance.
FWC amends awards in light of gender undervaluation review
Impact date: Between January 2026 and March 2026, depending on the award. The Fair Work Commission (FWC) has made changes to various awards as part of its 'gender undervaluation review'.
The affected Awards are:
- Aboriginal and Torres Strait Islander Health Award
- Children’s Services Award
- Pharmacy Award
The FWC also proposes to make changes to the following awards:
- Health Services Award
- Social, Community, Home Care and Disability Services Award
These changes arose out of a review into 'gender undervaluation' which refers to the systemic lower compensation associated with work primarily performed by women.
These changes include a more simplified award classification structure that will also recognize more senior roles, as well as staged wage increases, to more accurately reflect the value of the affected roles.
Employer implications/action needed Employers who engage employees covered by any of the affected awards should remain aware of the changes and review their business practices and employee award classifications to ensure compliance.
Employer risk Failure to comply with the provisions of a modern award can result in significant financial penalties, as well as potential criminal charges for 'wage theft' offences.
Fuel cost recovery – Road Transport Order
Impact date: The Order took effect on 21 April 2026. However, the obligations set out in clause 4 of the Order on primary and secondary parties will cease to apply if the weekly average national terminal gate price for diesel (as measured in the weekly diesel price report of the Australian Institute of Petroleum) falls below $2.00 per liter.
On 26 March 2026, the Fair Work Amendment (Fairer Fuel) Bill 2026 was introduced into the House of Representatives in response to the global fuel shortage and consequential rising fuel costs. The key feature of the Bill was to amend the Fair Work Act 2009 (Cth) (FW Act) to enable the Fair Work Commission (FWC) to make road transport contractual chain orders (RTCCOs) in an expedited manner in 'time-sensitive' circumstances to ensure workers are compensated for increasing fuel costs.
The Bill also provided for a Ministerial determination mechanism to allow the FWC to reduce mandatory minimum timeframes (from 12 months or six months in urgent circumstances) in relation to the making, varying and revoking of RTCCOs where events or circumstances create an existing or imminent, significant, national and negative impact on the road transport industry and it is in the public interest to do so. The purpose was to support timely regulatory responses to events or circumstances that have, or are likely to have, a significant national negative impact on the road transport industry. These changes came into effect from 2 April 2026.
On 2 April 2026, the Transport Workers' Union of Australia and Australian Road Transport Industrial Organization made an urgent application for an RTCCO. The FWC delivered its decision Re Transport Workers' Union of Australia [2026] FWCFB 95 and associated RTCCO (Order) on 20 April 2026.
The Order:
- came into effect on 21 April 2026
- overrides any other minimum standards while in operation and
- covers all work in the road transport industry (except cash in transit) and applies to primary and secondary parties, road transport business, regulated road transport contract workers (such as owner- drivers) and road transport employee-like workers (such as workers for a digital labour platform), but
- does not apply to employees of primary or secondary parties
The effect of the Order is that regulated road transport contractor or employee-like workers are compensated for any increase in fuel costs.
Primary parties are people and businesses in the road transport contractual chain who are parties to the first contract or arrangement in the chain (such as manufacturers, suppliers, large retailers and construction companies). Secondary parties are people and businesses in the road transport contractual chain who are party to a subsequent contract or arrangement in the chain (such as transport companies, fleet owners and smaller logistics operators).
The Order requires (on a fortnightly or twice-monthly basis):
- primary parties to adjust the rate paid to the other primary party or parties to the contract to an amount that ensures the other party recovers the increased cost of fuel and
- secondary parties to pass on the increased amount paid to them by the primary party to the other secondary party to the contract (such as another business or a regulated road transport contractor or employee-like worker)
Additionally, primary parties must take reasonable steps to ensure that secondary parties who engage regulated road transport contractors and employee-like workers in the same contractual chain adjust the rate paid to those workers by the amount necessary to ensure that they are compensated for any increase in fuel costs.
On 25 May 2026, the expert panel of the FWC conducted a review hearing of the Order and will review every three months moving forward. As at the date of this article, the FWC has not published its decision following that hearing.
Employer implications/action needed Businesses engaging road transport providers (such as manufacturers, retailers and construction companies) will need to adjust the amounts they pay to providers, such as small fleet operators, road transport contractors or employee-like workers. Accordingly, relevant businesses should implement systems to ensure compliance with the Order to enable fortnightly or twice-monthly payments.
Employer risk Employers and workers are required to comply with the Order. Any breaches constitute a contravention under section 536NP of the FW Act (which is a civil remedy provision). Accordingly, if a claim is brought in the Federal Court, Federal Circuit and Family Court or an eligible State or Territory Court, the court may impose a penalty. The maximum penalty that can be imposed for each contravention is currently $19,800 for an individual and $99,000 for a corporation.
Pay Day Super
Impact date: 1 July 2026
On 4 November 2025, the Federal Government passed the Treasury Laws Amendment (Payday Superannuation) Bill 2025, which introduced the 'Pay Day Super' reforms. The Bill amends the Superannuation Guarantee (Administration) Act 1992 (Cth) and associated superannuation and taxation legislation and will be administrated by the Australian Taxation Office.
Currently:
- employers are required to make superannuation guarantee (SG) contributions quarterly and
- the SG is calculated as 12% of an employee's ordinary time earnings only
From 1 July 2026:
- employers must pay SG contributions at the same time as they pay their employees' wages and
- the SG is payable is calculated as 12% of an employees' 'qualifying earnings' (which includes ordinary time earnings, all commissions paid to an employee, salary sacrifice amounts that would qualify as qualifying earnings had they not been sacrificed to superannuation and other amounts that are currently included in an employee's salary or wages for SG)
These reforms are intended to address the issue of unpaid superannuation and to help secure dignified retirement outcomes for working Australians. Additionally, employees will benefit from higher retirement savings from more frequent and earlier superannuation contributions throughout their working life.
Employer implications/action needed Employers should undertake an early review of payroll systems and processes to ensure operational readiness before 1 July 2026. This may include conferring with their payroll software provider, accountant, or registered tax professional.
Employer risk Employers may face financial penalties (including the super guarantee charge) for failure to comply with the new reforms. Late payment of super contributions may also breach the Fair Work Act or an applicable award or enterprise agreement.
NSW Passes Digital Work Systems Bill
Impact date: The date the Bill receives assent. On 12 February 2026, the NSW Parliament passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2025.
The Bill amends the Work Health and Safety Act 2011 (NSW) by introducing a 'digital work system duty' which will require employers to ensure, so far as is reasonably practicable, the health and safety of workers is not at risk by using a 'digital work system' at work, which is defined as 'an algorithm, artificial intelligence, automation or online platform'.
The employer must consider whether the digital work system creates or results in any of the following risks:
(a) excessive or unreasonable workloads for workers at work in the business or undertaking
(b) the use of excessive or unreasonable metrics to assess and track the performance of workers at work in the business or undertaking
(c) excessive or unreasonable monitoring or surveillance of workers at work in the business or undertaking and/or
(d) unlawful discriminatory practices or decision-making in the conduct of the business or undertaking
The Bill also expands the powers of union officials, enabling them to access digital work systems, including emails, algorithmic tools and other digital platforms, when investigating suspected work health and safety breaches.
Employer implications/action needed Employers should review their current digital work systems practices, and begin considering effective control measures to prevent the risks identified above, including updating WHS policies and consulting with employees.
Employer risk Employers may be prosecuted for failing to identify and implement controls against these risks.
Contacts
© Eversheds Sutherland. All rights reserved. Eversheds Sutherland is a global provider of legal and other services operating through various separate and distinct legal entities. Eversheds Sutherland is the name and brand under which the members of Eversheds Sutherland Limited (Eversheds Sutherland (International) LLP and Eversheds Sutherland (US) LLP) and their respective controlled, managed and affiliated firms and the members of Eversheds Sutherland (Europe) Limited (each an "Eversheds Sutherland Entity" and together the "Eversheds Sutherland Entities") provide legal or other services to clients around the world. Eversheds Sutherland Entities are constituted and regulated in accordance with relevant local regulatory and legal requirements and operate in accordance with their locally registered names. The use of the name Eversheds Sutherland, is for description purposes only and does not imply that the Eversheds Sutherland Entities are in a partnership or are part of a global LLP. The responsibility for the provision of services to the client is defined in the terms of engagement between the instructed firm and the client.