AUSTRALIA Law and Practice Contributed by: Kathy Dalton, Jonathan Wright, Gella Rips and Mirna Oghanna, Workdynamic Australia
In more serious investigations, participants may be asked to sign a confidentiality or non‑disclosure agreement (NDA), although this is not mandatory and should be considered carefully in the circumstances due to the potential for delay or complexity arising from negotiation of the NDA’s terms. For non-employees, such as contractors, a confiden - tiality agreement may be appropriate, as employers generally lack an equivalent power to impose enforce - able confidentiality obligations by direction alone. From 1 November 2026, Victorian legislation will pro - hibit the use of NDAs relating to workplace sexual har - assment between employers and employees in certain circumstances. No equivalent prohibition currently applies in other Australian jurisdictions, although the regulatory landscape in this area continues to evolve. Even where there is no legal restraint, NDAs that are overly broad, coercive or reasonably perceived as intended to “silence complainants”, particularly relat - ing to sexual harassment matters, may attract legal or regulatory scrutiny. Any confidentiality obligation should not prevent employees from seeking legal advice, obtaining sup - port, or making reports to authorities where legally permitted or required. Where an employee is subject to a lawful confidenti - ality obligation, failure to comply may be addressed by disciplinary action, depending on the nature and seriousness of the breach. 2.4 Preliminary Investigation and Scope- Setting Preliminary investigations (or “preliminary assess - ments”) are a common and useful procedural step often undertaken before commencing a formal inves - tigation, and are frequently contemplated or required by workplace policies. A preliminary assessment assists an employer in determining whether issues warrant investigation, are better managed through other processes, or should be closed without further action.
Preliminary assessments are particularly useful for clarifying issues early and ensuring that any subse - quent investigation is properly scoped, reducing cost, inefficiency and delay. They are especially valuable: • where allegations are unclear, broad or historical, or where the availability of witnesses or documen - tary evidence is unclear; and • for identifying whether threshold jurisdictional or policy issues exist or may arise. A preliminary assessment typically involves: • reviewing the complaint or information received; • clarifying the nature and particulars of the allega - tions; • identifying applicable policies or legal frameworks; • identifying available evidence and relevant wit - nesses; • assessing whether there is sufficient evidentiary basis to proceed; • assessing whether alternative resolution pathways may be suitable; and • identifying any mandatory reporting obligations or interim risk‑management measures. Where allegations are serious or present an imminent risk, or where the circumstances are sufficiently clear on their face, it may be unnecessary or inappropriate to conduct a preliminary assessment unless required by policy or law. Preliminary assessments can be particularly useful in the context of “stop bullying” or “stop sexual harass - ment” applications under the FW Act. The Fair Work Commission must consider any final or interim out - comes arising out of an investigation into the matter, any procedure available to the worker to resolve griev - ances or disputes, and any final or interim outcomes arising out of those procedures. A properly conducted preliminary assessment allows an employer to dem - onstrate early, proportionate and good faith action in response to an application. This can assist in nar - rowing the issues in dispute, reducing the likelihood of urgent intervention orders, and evidencing that the employer has taken reasonable steps to address workplace risks while a formal investigation or other resolution process is considered or under way.
15 CHAMBERS.COM
Powered by FlippingBook