On 12 December 2013 Seyfarth Shaw announced our Australian offices were officially open for business. Today marks five years since those doors opened.

What better way to reflect than to ask ourselves, what have been the biggest changes in our specialist areas of law over those five years?

“It has become increasingly difficult to make enterprise agreements that are compliant, genuinely enterprise-focused and fit for purpose due to increasing modern award complexity combined with the unworkable approach adopted in decisions of the Fair Work Commission and Federal Court to the BOOT and other procedural aspects of agreement making.”
– Rachel Bernasconi

“Over the past five years, I have observed the tension between sharing improved safety lessons and legal risk. I am concerned about compounding this potential unintended consequence with the rise of the industrial manslaughter offence.”
– Paul Cutrone

“I think the biggest development in employment and industrial law is how courts and tribunals are grappling with modern expectations of what ‘working’ looks like. This means they are looking at how to deal with the gig economy, flexible working arrangements (including working from home and telecommuting), employees wanting lengthy periods away from work and ‘portfolio’ careers. There is a real tension as employers seek flexibility to ensure customer demands are met while balancing the costs of labour vs employee representative groups seeking to pull the other way, seeking automatic casual conversion rights and laws that treat gig workers as employees. The next five years will see this tension play out in the policy debate.”
– Ben Dudley

“The most significant change I have seen is increasing employee mobility. Employees of large international organisations are spending more time on assignment in locations throughout the Asia Pacific, on both a short-term and long-term basis. We see this occurring as a result of organisations expanding their operations throughout the region. Employers are increasingly seeking specialist employment advice on both a single jurisdiction and multi-jurisdiction basis, including to confirm compliance with new frameworks and to ensure the appropriate arrangements are in place.”
– Luke Edwards

“The last five years has cemented a realisation that has been brewing for the last ten years. Enterprise bargaining amidst the current regulatory environment has reached its use-by date for many employers. Enterprise bargaining is no longer an opportunity to secure win-win outcomes but rather a process aimed at reducing the risk to on-going operations.”
– Chris Gardner

“There has been a shift away from spending money on large, wordy paper systems written by lawyers. I question whether anyone is any safer once they are developed. Smart organisations are investing heavily in understanding their key risks, controls and testing the effectiveness of those controls. This is where their efforts need to be.”
– Jane Hall

“One of the most significant developments I have seen in the last five years is the rise in the influence of workplace regulators. Consistent with the overall dynamic facing corporate Australia, we are seeing far more active, better resourced and assertive regulators across various workplace issues. The environment is one of heightened focus on compliance with workplace and safety laws; the financial and reputational stakes are higher than ever for employers who fall short.”
– Darren Perry

“Over the past 5 years, we have seen a number of areas where our Fair Work Commission cannot speak with one voice. While many parts of its jurisdiction have been affected, it is most noticeable in individual claims. How the Fair Work Commission balances even very serious conduct against mitigating factors remains unpredictable and has resulted in flip-flopping which creates ongoing uncertainty. This is costly and time consuming. Faced with cost and uncertainty we are seeing our clients feel pressure to settle rather than defend a sound and rational decision to uphold reasonable standards of conduct. The absence of clear statements of principle from the Fair Work Commission (such as we had in the past) and its increasingly subjective approach creates uncertainty, inefficiency and unfairness of a different kind.”
– Henry Skene

“The changes have been many and varied. What I am seeing is increased competition across a number of industry sectors, which means there is a war to retain and protect the most talented staff, who are the engine of the business. This has led to a big uptick in restraint of trade work – a highly specialised area which can be compared to a game of chess. We are passionate about this area of law and have built a specialist service model that in our opinion is market leading – whether it be getting into court within a matter of days when necessary, to defending applications for injunctions or damages. Our clients recognise that a good restraint is a business asset, and invest accordingly.”
– Michael Tamvakologos

On behalf of the team, we would like to thank the truly valued supporters of Seyfarth Shaw in Australia. We are excited to continue to work with you into 2019, and beyond.


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After several years of reports and recommendations, the Australian Parliament has passed the Modern Slavery Act 2018—carrying an imperative for businesses in Australia to take action on their modern slavery risks and responsibilities.

Updates to the legislation

The Modern Slavery Bill generated impassioned debate in both the House and Senate, passing with bipartisan support and several amendments to the legislation:

  • Explanations for failure to comply: If the Minister is reasonably satisfied that an entity has failed to comply with the reporting requirements, the Minister can request that the entity provide an explanation and/or undertake remedial action. The Minister can publish information about entities that have failed to comply with a request.
  • Minister’s Annual Report: The Minister must prepare an Annual Report assessing implementation of the Act, including an overview of compliance by entities and the identification of best practice modern slavery reporting under the Act during the year.
  • Three-year review: The Government agreed to a review of the legislation in three years’ time, which will include whether additional compliance measures are needed.

Labor has signalled that it will push for further amendments if elected into Government next year, including civil penalties for non-compliance, an Independent Anti-Slavery Commissioner, and a public list of entities required to report.

Clarity on reporting requirements

Businesses now have clarity on their modern slavery reporting requirements: All entities operating in Australia, with an annual consolidated revenue of over AUD $100 million, will need to publish a Board-approved modern slavery statement under the federal legislation within six months of the end of their financial year.

Organisations with employees in NSW and a turnover of over AUD $50 million will need to publish modern slavery statements under the NSW law. The Government has stated that businesses reporting under the federal legislation will not need to do so under the NSW law.

If not now, when?

The UN Working Group on Business and Human Rights recently released a report on corporate human rights due diligence with a key takeaway for businesses: just get started. Human rights due diligence and risk management has become an expected norm around the world—requiring proactive, ongoing investment from businesses to know and show that they are meeting their responsibilities to respect human rights. With the passage of the Modern Slavery Act, this should now be at the forefront of the corporate agenda here in Australia.

A proactive and strategic approach

Here are our next steps for Australian businesses.


We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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This week’s data released by the Workplace Gender Equality Agency (WGEA) shows some modest improvements in workplace gender equality in the entities required to report to WGEA (those with 100 or more employees).

There was an ever so slight increase in the proportion of women in senior management roles. And I guess the “biggest single-year drop” of 1% in the gender pay gap is something to celebrate (at least it didn’t go up!) notwithstanding that men still earn 21.3% more than women on average and pay gaps persist in every occupation and industry – even those which are heavily dominated by female workers, such as health & social assistance and education & training.

The stats also disclose that:
  • access to employer-funded paid primary carer’s leave has gone backwards. This disproportionally impacts women who still account for 94.9% of all primary carer’s leave utilised, with men accounting for only 5.1%
  • more than 35% of boards and governing bodies in the data set have no female members
  • although there was a 4% increase in organisations analysing pay data, 40% of those employers took no action to close the gap
  • although almost 75% of employers have a gender equality strategy or policy, only 31.4% have implemented KPIs for managers relating to gender equality outcomes.
Narrowing the “action gap”

The “action gap” – having policies and strategies in place but not making managers accountable for embedding them in their workplaces – has not narrowed. It has been 18 months since I published this blog on diversity and inclusion noting that:

It is trite and well-trodden ground that without buy-in from the top, progress towards true diversity and inclusion will not be made. However, general statements of commitment at the Board or corporate policy level will also never lead to change without integration and implementation at each business function and unit level.

Sadly, although obvious, it is still true. Whilst these policies and initiatives remain stuck within departments for example, seeing them as an HR responsibility not a broader management responsibility, and aren’t part of a broader organisational change conversation, things will never change.

With such little progress being made on gender equality, I’m disillusioned about the prospect of achieving meaningful diversity beyond gender in our workplaces (ethnicity, age, national origin, disability, sexual orientation, educational background, religion, parental status and socio-economic status) anytime soon, until we begin to close the gap between corporate rhetoric and reality.


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It’s no secret that Australians love their annual leave.

In recent years, many companies have chosen to go above and beyond minimum standards by offering extra leave – reflecting the view that rested employees are generally happier and more productive at work.

Some companies even let employees decide how much leave to take. For example in 2014, Virgin Group unveiled an ‘unlimited’ annual leave policy. Our 2014 blog observed that “time would tell” if the unlimited annual leave policy was an enlightened approach to workplace flexibility, or a step too far.

Four years on, we are seeing reports that unlimited leave is working so well that some companies are offering such leave fully paid. Companies with unlimited leave policies have reported an increase in trust and engagement levels, higher rates of productivity and less burnout.

The available data indicates that employees who have access to unlimited leave policies are not abusing the system by going on obnoxiously long holidays – far from it. Rather, employees tend to take up to five weeks leave a year, little more than the statutory minimum for most.

It is easy to remain sceptical of ‘unlimited leave’ policies. For one thing, placing the onus on individual employees to decide how much leave they take each year may create stress of another kind: Will my employer think I am lazy / taking advantage / not a team player? It also requires a high degree of trust between management and employees.

It is apparent that simply providing employees with more annual leave is not a panacea, particularly if employees see work as something to be avoided. The goal of enlightened companies should be to make employees feel as good about work as their holidays.

A generous annual leave policy is one way for companies to demonstrate that they trust and value employees. Of course, flexibility works both ways. But, where it works, it appears companies can be rewarded with higher productivity, boosts to morale and motivation, employer-of-choice status, and reduced ‘flexibility stigma’ in their workplaces.


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An enforceable restraint of trade can be a key business asset. Some might think about it as an insurance policy. The capacity to preserve customer connections, protect confidential information and discourage key executives from setting up their own business or moving to a competitor can be critical to information rich businesses operating in a competitive market.

This is the case now more than ever given that the Supreme Court of Victoria’s decision in Just Group Limited v Peck [2016] VSC 614 (later affirmed on appeal) has arguably raised the bar for correctly drafting an effective restraint.

As we pointed out in our second blog piece on post-employment protections, ensuring the currency of your restraint provisions is an important exercise in risk management.

This success can be attributed to the practice of regularly revisiting the questions of which key executives or employees should be subject to restraints, and how those restraints should operate. The yearly promotion, pay rise or management re-shuffle cycles are perfect opportunities to update restraint provisions. Often, this is when operational changes (such as the make-up of roles) become effective, so restraints can be tweaked to align with these changes. A promotion or pay rise can be tied to a new contract or restraint provision. Instead of adopting a one-size-fits-all approach when an employee first joins the business, employers can increase the likelihood that a restraint will be enforceable by showing it was the subject of specific negotiation during the employment.

Experience in this area reveals one key distinction which separates cases where restraints are successfully upheld and those where compromise outcomes are achieved. In successful cases, typically, the restraint provision has been drafted neatly around the key protectable interests. When seeking to enforce a restraint, an employer will be required to show there is a protectable interest capable of supporting the restraint. This is the first limb of the test for enforceability. The scope, duration and geographical operation of the restraint are logically tied to the protectable interest (see our map below). An employer will need to make out each of these elements to meet the second limb of the test.

Post-Employment Protections Legal Dimension – Map

If the restraint then needs to later be relied upon down the track, the employer has the benefit of a provision which protects a current business asset (e.g. key connections with important customers or suppliers who the employee is in contact with) this is likely to be enforceable in court. If the opportunity to update a restraint has been missed, it may be necessary to try to force fit the facts into a restraint that might have been drafted years earlier in a very different business context – for example, when the employee was performing a different role. This can increase the degree of difficulty when enforcing a restraint.

Although courts will give employers some latitude – because the reasonableness of a restraint is judged at the time it was entered into – that latitude is limited. Regular housekeeping means that it won’t be necessary to call on this latitude because the restraint is fit for its purpose, and enforcement proceedings can be approached with confidence.

Doing this work inevitably pays dividends over the long term. Preparing an effective restraint is similar in concept to buying an insurance policy. You hope you won’t have to call it in. But if you do need to call on it, you are very glad you have it. The past decision to do the work inevitably looks very wise.


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Modern slavery legislation at the Commonwealth level in Australia is getting closer.

The Modern Slavery Bill 2018 (Cth) passed the Lower House last week. The Opposition pushed for several amendments to the legislative framework including establishing an Independent Anti-Slavery Commissioner to oversee implementation and enforcement of the legislation, the introduction of penalties on companies for non-compliance with their reporting obligations, and an obligation on the Minister to report annually on compliance by reporting entities. While none of these passed, the Opposition nevertheless supported the passage of the legislation as it currently stands.

The Bill has been introduced into the Senate with debate adjourned until the next period of sittings in mid-October 2018.

Notwithstanding the recent change of Federal Minister responsible for the Australian Government’s strategy to combat modern slavery, there remains broad and bipartisan support for the Bill and the Federal Government remains committed to having the legislation passed this year.

If you’re not at the table, you’re on the menu

Modern slavery has become one of the highest-profile business and human rights issues in Australia, with significant engagement from investors, scrutiny from civil society, and interest from across the political spectrum. Meeting the legislative requirements – and satisfying the growing market standards – will require a proactive and strategic approach to modern slavery risk assessment, due diligence, and external reporting.

To get ready for the Commonwealth legislation, which is likely to take effect in January 2019, see our Modern Slavery Action Plan.

NSW legislation

Since our blog in June 2018, there have been no updates on the NSW Modern Slavery Act 2018 – which still has not commenced operation despite being passed by the NSW Parliament on 21 June. This is likely due to stakeholder lobbying for one nationally consistent modern slavery reporting regime across Australia. In our view, this would make sense for businesses so that they do not have to comply with competing obligations under State and Commonwealth regimes (subject to any Constitutional inconsistency arguments).

The reporting obligations under the NSW and Commonwealth legislation are largely, although not entirely, overlapping. The NSW legislation allows for the NSW government to prescribe, among other things, that the NSW reporting obligations do not apply if an organisation is subject to obligations under a corresponding law of the Commonwealth. However, the big sticking points for NSW in deciding whether to cede entirely to the Commonwealth in this space are likely to be:

  • there are substantial penalties under the NSW legislation, but none under the Commonwealth regime and
  • the NSW scheme applies to organisations with a total turnover in a financial year of at least $50 million whereas the Commonwealth Bill, when passed, will only impose mandatory reporting obligations on organisations with an annual revenue of over $100 million.

We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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A Senate Select Committee report on the Future of Work and Workers handed down this week after a year-long inquiry, gives some insight (which is likely to be startling to most employers) into the likely Labor legislative agenda in the workplace relations space if there is a change of government at the next election.

The employment and IR related recommendations from the Committee’s majority (dominated by Labor, Greens and Independents) include the following that have general application to employers, particularly those with unionised workforces:

  1. Stronger legislative requirements for employers to consult with workers and trade unions before and during the introduction of major technological and other change in the workplace.
  2. Workplace legislation be amended to strengthen the protections available to workers and their unions.
  3. Legislate to extend workers’ and trade unions’ rights to collectively negotiate terms and conditions of employment.

The following additional recommendations of the Committee’s majority are likely to be a cause for concern for employers who regularly engage casuals, labour hire workers, contractors or other gig workers – on top of the already problematic landscape given recent decisions relating to casuals (for example, the Full Federal Court’s decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131) and labour hire workers (for example, the Fair Work Commission’s decision in Kim Star v WorkPac [2018] FWC 5745):

  1. Review the definition of “casual” work.
  2. Legislative amendments to crack down on sham contracting and employment arrangements which classify workers who are in fact dependent as independent contractors, in order to avoid employment obligations.
  3. Improve superannuation rights for workers who are not classified as employees and/or who perform non-standard work.
  4. Legislative amendments that broaden the definition of employee to capture gig workers and ensure that they have full access to protection under Australia’s industrial relations system. The formulation proposed is: if a company makes money directly as a result of workers’ labour, and if workers are dependent on the company for work and income, then those workers are employees of that company.
  5. Introduction of a national labour hire licensing scheme and a requirement that labour hire workers have access to and be paid at least the same wages and conditions as the directly engaged employees working alongside them.
  6. Further consideration be given to implementing portable leave schemes.

If any of these recommendations come to pass, it will add to the existing challenges for businesses seeking to use alternative labour models. Watch this space…


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Over 40 million people around the world are trapped in conditions of modern slavery, according to research from the Walk Free Foundation and the International Labour Organization. The fight against modern slavery is fragmented. Governments, non-governmental organisations (NGOs) and law enforcement agencies are engaged in their own fights at various levels (local, regional, national, global) with little collaboration.

In increasingly globalised markets, there is growing regulatory and consumer pressure on businesses to eliminate the exploitative practices of modern slavery in their operations and global supply chains.

Businesses have the chance to lead the way in the growing global effort to eliminate the exploitative practices of modern slavery; they are uniquely positioned to educate the largest constituency—their employees and business partners. By taking action, businesses can meet increasing investor, shareholder and social expectations; manage legal, reputational, financial and operational risks; and demonstrate corporate leadership on an urgent human rights issue.

However, they cannot do it alone and, to be effective, businesses will need to go beyond mere compliance efforts centred on due diligence/disclosure and focus on transparency and collaboration with government and NGOs. Technological advancements are providing real and substantial opportunities for improvement.

Using technology for greater transparency

Governments and NGOs are starting to take advantage of technology to spread knowledge and tools for those in the private sector and communities to educate themselves and learn how they can take action.

For example, the U.S. Department of Labor has created two apps—Sweat & Toil and Comply Chain—that each have a different focus. Sweat & Toil is a resource companies can use in their risk assessments to identify whether goods used are produced with child or forced labour. It consolidates information on other countries’ legal and enforcement standards, among other things. Comply Chain creates a standard of set practices to reduce the likelihood of goods being produced with child or forced labour. It provides a blueprint for businesses to create or enhance a social compliance system.

NGOs like Stop the Traffik, a global organisation focused on prevention of modern slavery, has created a Center for Intelligence Led Prevention, in partnership with IBM, to collect, analyse and disseminate information about modern slavery routes and risks. With the dissemination of such information, the efforts in this fight can become less fragmented.

Likewise, for businesses to really make a difference as they embark—voluntarily or involuntarily—on responding to a new regulatory scheme, technological advancements will give them an opportunity to support their actions in working towards transparency and ethical supply chains. For example:

Worker voices – Utilising mobile platforms allowing two-way, real-time communication for workers throughout the supply chain.

Traceability of materials and supplies – Using blockchain to trace products along their journey from producer to consumer.

Supplier and worker engagement – Equip and use data analytics to monitor labour-related risks in real-time, creating more responsible global supply chains.

Risk assessments – Mining data (for example, from mobile phones, media reports and surveillance cameras) which can be analysed using artificial intelligence and machine learning to extract meaningful information and identify risks in the supply chain.

Employee engagement – Using internal communications tools to allow employees to engage and become educated, particularly in recruiting.

Technology can only be as good as the purpose for which it is used and how carefully the information acquired from it is leveraged. If effective tools are used to educate and learn from the different actors within the supply chain, there is opportunity for businesses to work with governments and NGOs to build and share knowledge.

The compliance framework

In addition, there is a growing body of international laws and norms requiring corporate reporting and due diligence on modern slavery and human rights issues.

These include the UK Modern Slavery Act, the French Corporate Duty of Vigilance Law, the Swiss Responsible Business Initiative, the U.S. Federal Acquisition Regulations, and the California Transparency in Supply Chains Act. Legislatures in Canada and Hong Kong are also currently considering modern slavery laws, alongside Australia’s proposed Modern Slavery Act and NSW’s Modern Slavery legislation.

The compliance steps for meeting legislative requirements will not be unfamiliar to businesses; the these steps will be much like actions taken for compliance with anti-bribery laws.

Between the growing global compliance framework, technology and the willingness of business to honestly review their operations, comes the potential for a new level of transparency and commitment, helping to build on efforts to fight modern slavery and more holistically bring this largely hidden crime to light.

We are already working with our clients to ensure they comply with their modern slavery reporting obligations – contact us if you would like to know more.

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Traditionally, alternative labour models – including outsourcing and contracting – have been used by business to defray cost and risk and deal with workflow fluctuations. Today’s environment is creating new challenges for organising and engaging alternative labour. Here’s 5 key reasons why:

  1. Increased accountability for those at the ‘top’

Changes to the Fair Work Act 2009 in 2017 introduced new vulnerable workers laws under which certain corporate group holding companies and franchisor businesses can be held directly liable for breaches by other companies within their broader commercial operations.

  1. New labour hire regulations

New laws in Queensland, South Australia and Victoria require labour hire companies to be licensed. The broad definitions used could also pick up other labour models (eg, some types of contractors or secondment arrangements). ‘Host’ companies and other people involved in the labour arrangements can also be liable, meaning a degree of due diligence may now be required for all parties involved in sourcing labour.

  1. Supply chain reporting

Modern slavery legislation imposes mandatory reporting requirements on the activities of others in their supply chains, with the requirement to produce a ‘Modern Slavery Statement’. Many companies are already subject to reporting in the US or UK. New legislation imposes requirements on companies in NSW, with Commonwealth legislation currently being drafted. Companies above the reporting threshold will need to assess the labour arrangements of their suppliers, and potentially their suppliers’ suppliers as well.

  1. Regulatory responses to the gig economy

Gig” work is coming under increasing legal challenge both in Australia and globally. Some political parties, and the ACTU, are also pushing for legal changes to regulate gig work. Watch this space – changes directed at gig work could also affect freelancers or other task-based labour.

  1. Union campaigns

Outsourcing is far from new. The use of third party labour with their “built for purpose” workplace arrangements is common. But in some sectors, union campaigning to compel a different outcome, attacking “Trojan horse” and “sham” arrangements (drawing on activist methodologies), is as powerful as ever.

The above trends result in increased risk and liability for those businesses that use labour models other than direct employment. But these risks can be navigated with due diligence with alternative labour remaining a viable strategy.


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Allegations of sexual harassment have dominated headlines, most visibly with the #MeToo campaign.

Sexual harassment complaints, and the laws that attempt to curb the behaviours, are not new. Despite regulation, sexual harassment is still occurring in workplaces. Why?

One answer may be that organisations guard against sexual harassment through policy and lecture style training without reference to the broader workplace context.

To counter this, an alternate approach may be to use existing risk management frameworks, that have traditionally been used in the workplace health and safety context.

Step 1: Identify hazards

This step requires a deep and honest assessment of the:

  • Structure of the organisation and the industry context.
    For example: Highlighting potential hazards, such as reliance on informal recruitment practices and extreme competition for jobs that could combine to create a higher risk environment.
  • Type of work.
    For example: Physically demanding work and roles that seek attributes where appearance determines recruitment could increase risks.
  • Way work is performed.
    For example: If work is performed in environments that isolate workers, and where workers are required to be alone with a superior, colleague or customer this could lead to increased risks.
Step 2: Assess the risks

Understand the nature of harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening.

To assess this, ask:

  • How often are people exposed to the hazard? Does this make the harm more or less likely?
  • Has sexual harassment ever happened before arising from the identified hazard, either in your workplace or somewhere else? How often?
Step 3: Identify control measures and assess whether they are reasonably practicable

The most important step in managing risks involves eliminating them so far as is reasonably practicable, or if that is not possible, minimising the risks so far as is reasonably practicable. This requires higher order controls.

Can a hazard or risk be eliminated?

If lower order controls are used are these the right type of the controls? Our experience is that lecture style, text book training to address sexual harassment rarely works by itself. Interactive, engaging sessions which avoid regurgitating the legal definition of sexual harassment are likely to better engage a workforce.

Step 4: Implement the control measures

Implementation of the control measures may require changes to the way work is performed. This may require new procedures, additional training and supervision.

Step 5: Review and revise

Viewed through a risk management lens, polices and training which have typically been the tools of choice for addressing sexual harassment are low on the hierarchy of the controls. If organisations approach sexual harassment with a risk management approach, and identify appropriate higher order controls might we decrease instances of sexual harassment?

For example:

It is identified that in a highly competitive niche creative business which uses short term workers, recruitment is frequently informal and takes place at industry events.

All else being equal, the likelihood of (an allegation of) sexual harassment is higher in these circumstances than if recruitment were to occur in an office where a formal interview was conducted with a representative mix of interviewers.

The organisation seeks to minimise the risks, by putting in place processes that ensure even when contacts are met at industry events, a formal interview occurs within working hours in the office environment.

These control measures are reviewed and reviseded. Ensure the control measures remain effective. Are complaints of sexual harassment decreasing? What does formal and informal consultation with workers tell us about the effectiveness of controls?

We are working with our clients to trial this approach – combining our specialist expertise across workplace health and safety, and employment law.


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