Non Disparagement Employment Agreement Template for Australia

Yes, a non-disparagement clause is enforceable as a contractual term under Australian common law, provided there is offer, acceptance and consideration. For a new hire the job offer itself is the consideration, but for an existing employee you generally need something fresh, such as a separation payment or a retention bonus, which is why these clauses most often appear in deeds of release. A clause that is unlimited in scope and duration risks being read down or treated as unreasonable, so the definition of "disparaging conduct" and the time limit should be drafted tightly.

It should define what counts as disparaging conduct, identify who is protected (the company, related entities, directors, officers and named individuals), state the duration, and set out the carve-outs for legally required disclosures. It should also say whether the obligation is mutual, since employees frequently negotiate for the employer and its managers to be bound as well. Finally, include a remedies clause covering injunctive relief and, if used, a clear statement of any repayment obligation triggered by breach.

No. A clause cannot validly prevent a protected disclosure under the whistleblower provisions in Part 9.4AAA of the Corporations Act 2001 (Cth), a disclosure to ASIC or APRA, a complaint to the Fair Work Ombudsman, or an application to the Fair Work Commission. Attempting to gag those channels can itself expose the employer to penalties and may amount to adverse action under the general protections in Part 3-1 of the Fair Work Act 2009 (Cth). The carve-out clause should expressly permit disclosures required or authorised by law, to a regulator, or in response to a subpoena or compulsory process.

There is no statutory cap, and many Australian agreements make the obligation perpetual because it protects reputation rather than trade secrets or market position. A perpetual term is more defensible where the clause is mutual and narrowly defined; a broad, one-sided and unlimited restriction is more likely to attract argument that it is an unreasonable restraint. In New South Wales, the Restraints of Trade Act 1976 allows a court to read a restraint down rather than strike it out, which is not the position in most other states.

The usual remedies are an injunction to stop continuing publication and damages, though proving quantifiable loss from reputational harm is often difficult. For that reason many agreements include a liquidated repayment clause requiring return of some or all of a settlement sum on breach, which must be a genuine estimate of loss rather than a penalty or it will not be enforced. The dispute resolution clause should also state whether the parties must attempt mediation before commencing proceedings.

Only if the drafting says so. Best practice is to define disparaging conduct to expressly include statements made on social media platforms, employer review sites, podcasts, media interviews and anonymous or pseudonymous posts. Without that wording, a departing employee may argue an anonymous review sits outside the clause, and enforcement becomes far harder because you must first establish authorship.

Confidentiality restricts disclosure of specified information such as trade secrets, client lists and the terms of a settlement, while non-disparagement restricts negative statements even where the underlying facts are already public or true. A statement can therefore breach non-disparagement without breaching confidentiality, and vice versa. Most employment agreements include both as separate clauses so each obligation can be enforced independently and survive termination on its own terms.