For employees and employers
Workplace NDAs and confidentiality clauses: what they cover, and when to get advice
Confidentiality clauses appear in employment contracts, in settlement deeds, and in stand-alone non-disclosure agreements handed over during investigations or restructures. Most are unremarkable protections for business information. Some go further and try to keep you quiet about how you were treated, which is where the law draws lines. This page sets out what a workplace NDA can lawfully do, what it cannot, and when the wording is worth paying someone to read.
Updated . General information, not legal advice.
Do you need a lawyer for this?
Advice usually pays for itself when
- The NDA is attached to a settlement of a harassment, discrimination or bullying complaint and covers the facts, not just the amount.
- You are being asked to sign a confidentiality agreement during an investigation and are unsure what you can tell a union, a support person or a regulator.
- The clause is combined with a restraint or a clawback, or it carries a liquidated damages figure for breach.
- You are an employer drafting an NDA for a sensitive matter and want it to be both effective and lawful.
The free route is usually enough when
- A standard confidentiality clause protecting client lists, pricing and trade secrets during and after employment. These are routine and generally enforceable.
- You want to understand the words before signing something ordinary. The free tool explains the standard terms.
What can a confidentiality clause lawfully cover?
Genuine business information: client and supplier details, pricing, financials, product plans, methods and anything reasonably described as a trade secret. It can bind you during employment and after it ends, and there is usually no fixed time limit on protecting a real trade secret. It can require you to return or delete material. It cannot cover information that is already public, your own general skill and experience, or knowledge you could not help carrying in your head. And its enforceability depends on the employer having treated the information as confidential in practice. A clause that labels everything confidential protects less than a clause that identifies what actually matters.
What can it never stop me doing?
Reporting suspected wrongdoing to a regulator, the police or a body such as the Fair Work Ombudsman or a safety regulator. Making a protected disclosure under whistleblower laws. Giving evidence or complying with a court order or subpoena. Getting legal, financial or medical advice. Talking to a union about your employment. A confidentiality clause that purports to prevent any of these is unenforceable to that extent, whatever it says, and an employer that relies on it to threaten someone is in a worse position than if the clause were silent. That does not make the rest of the clause invalid, so read it as a whole rather than assuming it falls away.
What about NDAs in harassment and discrimination settlements?
This is the contested area. Settlement deeds in these matters have long included confidentiality about the terms and often about the allegations. Concern about NDAs being used to silence complainants and protect repeat offenders has led to proposals to restrict them, and FairWork Mate's tracker page holds the current status of those proposals, which the reader should check rather than rely on this page for. Whatever the law at the time, a complainant asked to sign should understand exactly what they can and cannot say afterwards, to whom, and what happens if they breach it. That is not a document to sign under time pressure.
How should an employer draft one?
Name the categories of information rather than using a catch-all. Include an express carve-out for reporting to regulators, protected disclosures, legal advice and legal proceedings, because courts treat a clause without it with suspicion and a clause with it as evidence of good faith. Keep confidentiality about the terms of a settlement separate from any attempt to restrict discussion of the underlying facts, and think hard about whether the second is needed at all. Avoid liquidated damages figures that look like penalties. And give the person time and encouragement to get advice before signing, which strengthens the agreement rather than weakening it.
When does a lawyer pay for itself?
Any NDA attached to a settlement of a complaint about your treatment. Any confidentiality agreement produced during an investigation, because signing it can affect how you participate and who you can talk to. Any clause carrying a fixed damages figure or sitting next to a restraint. For employers, any NDA for a sensitive matter. Liquid Employment Lawyers is FairWork Mate's paid legal partner for contract and agreement review. It is an Australian employment law firm rather than free government help, and it explains scope and fees before you commit. A standard confidentiality clause in an ordinary contract does not need a lawyer.
What is the free route?
The Fair Work Ombudsman on 13 13 94 explains your workplace entitlements and can be contacted regardless of any confidentiality clause. FairWork Mate's NDA enforceability tool walks a clause through the tests above, the NDA ban tracker holds the status of proposed restrictions, and the contract review tool covers the clause in context. Free general information, not legal advice. FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
Can I tell my partner or a friend about a settlement?
It depends on the wording. Many deeds allow disclosure to immediate family and professional advisers and prohibit everyone else. Read the permitted-disclosure list before assuming anything, and ask for family to be added if it is missing.
I signed an NDA during an investigation. Can I still speak to a union or a lawyer?
Yes. A confidentiality agreement cannot stop you obtaining legal advice or talking to a union about your employment, and it cannot stop a report to a regulator. It can restrict discussing the details with colleagues.
What happens if I breach a confidentiality clause?
The employer can seek an injunction and, if it can prove loss, damages. Some deeds also make repayment of the settlement sum a consequence of breach. Whether such a clause is enforceable as written is a legal question.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The free official route for entitlement questions is the Fair Work Ombudsman on 13 13 94.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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