Seyfarth recently hosted a webinar entitled ‘Managing Cross-Border Sexual Harassment Investigations in Australia and Asia’, addressing the practical considerations that employers should be aware of when investigating allegations of sexual harassment in the workplace. This webinar highlighted relevant laws and examples from Australia, Hong Kong, Singapore, and the People’s Republic of China (PRC). Given the strong interest in this topic, we bring you a series of three blogs that highlight 10 key considerations.

Managing cross-border sexual harassment investigations in the Asia Pacific region presents unique challenges due to varying legal frameworks, cultural norms, and procedural requirements. This blog series aims to provide an outline to help navigate these complexities, focusing on the key differences in investigation procedures across the Asia Pacific region. By understanding these differences, organisations can ensure that their investigations are conducted fairly, efficiently, and in compliance with local laws.

Part one of this series covers our first three considerations – the definition of ‘workplace’ harassment, privilege, and investigation teams.

#1 – When is ‘workplace’ sexual harassment unlawful in each country?

This question affects when sexual harassment is a matter for employers, and can validly be the subject of an investigation. Remote work, social events, and other non-traditional settings can all raise complexities.

In Australia, sexual harassment is unlawful (and employer liability can arise) in a variety of circumstances where the harasser or victim is a worker, or where there is a relevant connection to work. This extends outside the boundary of a physical ‘workplace’ or ordinary working hours.

In the PRC, ‘workplace’ usually encompasses social activities closely related to work and company organised events, for example, a work Christmas party.

In Hong Kong and Singapore, ‘out of hours’ events may be considered part of the ‘workplace’ if there is a sufficient connection between the workplace or employment and the out-of-hours conduct engaged in by the employee. In Hong Kong, workplace sexual harassment can occur not just between employees but between any ‘workplace participant’, which includes contract workers, interns, and volunteers as well.

#2 – Establishing the scope of sexual harassment investigations

Being clear about the scope of a workplace investigation will help define the specific issues to be investigated, and what questions the investigator will (or won’t) answer. For an investigation to be thorough and effective, the scope must be clearly defined to ensure that it addresses all the relevant issues.

In Australia, it can assist to ensure the scope is recorded in writing, including what allegations are being investigated and whether the investigation will be limited to fact-finding.

In Hong Kong, the scope of the investigation is quite often limited to fact-finding, with advice on what action to take subsequent to the investigation (including any disciplinary action) being carried out by separate lawyers within the same firm (with information barriers put in place) or a different firm, so as to maintain the independence of the investigation. The position is similar in Singapore, but with a little more flexibility.

In the PRC, investigators play a more active role than other jurisdictions in deciding the scope of an investigation, as well as providing recommendations and participating in disciplinary proceedings.

#3 – How is privileged information protected during investigations?

Legal privilege varies significantly across jurisdictions. This affects the extent to which confidential communications and documents can be protected from requests or orders for disclosure.

Legal privilege in Australia can apply to confidential communications where the dominant purpose was for litigation or provision of legal advice. It is possible that investigation records and the final report can be protected by legal privilege where they were created for a privileged purpose. In Australia, a common cause of dispute is whether privilege has been waived by later disclosure or use of documents for other purposes or if promises have been made about what would be disclosed.

In Hong Kong and Singapore, where investigations are conducted on a pure fact-finding basis (i.e., no legal advice is provided) and litigation is not reasonably in contemplation at the time of the investigation, it can be more challenging to assert legal privilege over the investigation process and report. If a client wants an investigation to be conducted under privilege, this will need to be carefully considered when establishing the scope of the investigation and steps put in place to achieve the protection of privilege.

The PRC does not recognise legal privilege like common law jurisdictions do. Lawyers in the PRC have an obligation to maintain confidentiality and have the right to refuse disclosure of certain documents or information in order to protect clients’ trade secrets and personal data.

In part two of our series, we will look at who forms part of an investigation team, how location affects which laws apply to an investigation, and notification requirements.

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“Curiosity killed the cat” is a proverb “used to warn of the dangers of unnecessary investigation or experimentation” (Wikipedia) or is an idiom “said to warn someone not to ask too many questions about something” (Cambridge online dictionary). Yet for the modern officer, curiosity is a must, as it aligns with their personal WHS due diligence obligation.

Work health and safety (WHS) legislation, case law developments and many a published article on corporate governance (or lack thereof), confirm that in the case of an officer, failing to investigate or ask questions about WHS can lead to potential corporate, and personal, criminal liability. And there’s more than just the legal side – there’s the societal expectations, reputational risks, and human impacts on the officer and others.

Legal changes and criminal penalties often reflect what society expects and values. When society demands higher health and safety standards or accountability, laws and penalties are often updated to match those expectations. The current state of WHS law demonstrates how seriously Australian legislators take WHS:

  • For more than a decade most Australian jurisdictions have had a definition of due diligence and a requirement that officers (meaning more than the board, CEO and company secretary) exercise due diligence to ensure the company complies with its legal WHS obligations.
  • There’s now a definition of corporate culture in one jurisdiction and provisions regarding the attribution of conduct of workers and agents to the body corporate in all jurisdictions.
  • Each state and territory have an industrial manslaughter offence, meaning officers (or senior officers in Queensland) face maximum penalties of at least 20 years in prison if their conduct causes a death. The conduct categories vary by jurisdiction, including negligence, gross negligence, recklessness and knowledge of likely harm or death.

There has been a lot of commentary on recent cases highlighting the officer duties in larger organisations. Some of this commentary suggests that there is now a clearer picture of the requirements of an officer. Is this really the case? Sure, the consequence in at least one case was “new” but in the context of the increasing focus on WHS, is what was expected to meet their personal due diligence obligation really “new”?

When we boil it all down, one of the key issues is curiosity—whether it exists or is lacking. Officers must take timely action when information requires it. Being a passive recipient of information is not enough. Due diligence includes verifying other elements of the legislative requirements and acquiring and maintaining WHS knowledge. This involves both internal and external considerations.

How you exercise due diligence will depend on the type of officer you are – executive director, non-executive director, company secretary, executive or senior level manager, or someone operating in the “shades of grey” of the Corporations Act’s definition of “officer”. It also depends on the type of business – white collar, blue collar, static or dynamic workplace. Its going to depend on the business’ nuances, the level of oversight of operational persons or processes, and that officer’s “day job”, amongst a myriad of other factors. The questions you ask will vary, but the need to ask questions is not new. Depending on who you are, such questions might include “what are the health and safety implications of this?” or “how does this process consider safety?”

If you’re an officer who is curious about WHS, keep it up. If you’re not, or not as much as you should be, get curious. The consequences of not doing so have never been higher with increasing financial penalties and in some circumstances, time in prison. Years down the track, in a clinical and forensic court room, in front of the family of a deceased or seriously injured worker, there aren’t many good sounding reasons you can’t be curious. Once you are curious, act on the information provided to you – not doing so could be worse than not being curious.

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On 20 March, we published the first in this two-part series about the legal developments being watched closely by resource sector businesses in 2025 that could significantly impact their labour strategies. With margins continuing to be squeezed due to the costs of non-labour inputs continuing to rise, labour cost will come under pressure as 2025 rolls on.

In that blog, we looked at two strategies used by employers facing these pressures – the use labour hire and workforce reductions. Relevant to those strategies, our blog examined the BHP / OS Production / OS Maintenance case and its potential impacts on the same job, same pay jurisdiction and a case before the High Court dealing with whether an employer must look to reduce contractor workforce numbers before implementing direct employee redundancies.

Occasionally, in times of cost constraint, bargaining with a workforce can be utilised to achieve commercial outcomes that allow an employer to stabilise its labour cost while maintaining its workforce. This is likely to be more achievable when negotiating as a single employer as opposed to with multiple other employers, where the highest common outcomes can be difficult to avoid.

Earlier this month, the Full Court of the Federal Court heard a challenge against a Fair Work Commission decision in which three resources companies – Whitehaven Coal, Peabody Energy and Ulan Coal Mines, a subsidiary of Glencore – were ordered to engage in a joint bargaining process for a pay deal covering Deputies, Undermanagers, Shift Engineers and Control Room Operators (together, Statutory Staff Positions) at their underground mines in New South Wales. The companies argue that the Commission was wrong to find that they had “clearly identifiable common interests” and that their operations and business activities were “reasonably comparable.” Both of these findings are necessary for the Commission to order multi-employer bargaining (formally known as “single interest employer” bargaining).

The Commission found that the companies had “clearly identifiable common interests” due to a range of factors. These included a common approach to employment terms and conditions, including a desire to negotiate individually with the Statutory Staff Positions on annual remuneration, performance incentives, and shift work rosters and their location in New South Wales, which means that they are subject to the same health and safety regulations and regulator.

The Commission also found that the operations and business activities of the companies were “reasonably comparable” because they all:

  • operate underground coal mines in New South Wales (despite being located in different regions and on different coal seams) and face common industry regulation
  • compete in international export thermal coal markets, and primarily sell to customers in Asia
  • share similar job descriptions for the Statutory Staff Positions, which are mandated by mining safety legislation or perform essential functions
  • based in regional inland areas of New South Wales, where they encounter difficulties in attracting and retaining staff, and
  • use longwall mining methods.

Despite the commonalities identified by the Commission, these companies argue that separate bargaining would better address the unique needs of their individual business operations, including differing geological challenges, anticipated life of mine and mine operating margin. One of the companies made the seemingly very sensible submission that, if the differences between the employers are significant enough that separate negotiations around wages and conditions were likely even in a multi-employer bargaining situation, bargaining may not proceed efficiently (which is a central object of the Fair Work Act 2009 (Cth)). Although the Commission mentioned this submission, it did not specifically engage with it in its decision.

Employers are concerned that the necessary degree of “commonality” required by the Commission was no more or less than exists between many competitive businesses in the resources and other sectors, potentially leading to unions pursuing many more multi-employer agreements. For instance, resources companies are worried that there may be little to distinguish this case from other cohorts, such as similar statutory roles in Queensland coal mines.

The outcome of this case is likely to determine whether and how far multi-employer bargaining will spread beyond its initial take-up. If the Federal Court upholds the Commission’s decision, it could lead to a new push by unions for more multi-employer agreements, impacting how companies manage their labour cost and workforce productivity.

Employers, particularly those in the resources sector, remain concerned that multi-employer bargaining will inevitably lead to ‘highest common denominator’ outcomes, where the labour cost of all affected employers is increased to the high-water mark of those businesses. This is accentuated by the possibility that unions can seek other employers, not involved in the actual bargaining process for the multi-employer agreement, to be effectively “roped into” the coverage of the multi-employer agreement once it is made by the Commission.

The bargaining will almost certainly involve less concentration on measures to improve workforce productivity at the individual enterprises at the bargaining table and concentrate more on broader, industry or sector-wide conditions. In this sense, multi-employer bargaining will look less like the enterprise bargaining initially introduced in the early 1990s which was designed to address and effect productivity improvements based on the specific needs of individual workplaces and more like the making of industry-wide safety net awards.

If a business is already covered by, or it has agreed with a union to bargain for, an in-term single enterprise agreement, the Commission is unable to order it to bargain for a multi-employer agreement. Therefore, having an in-term single enterprise agreement offers some protection (until its expiry) from being required to bargain with your competitors. This option at least allows a business to negotiate specifically for terms and conditions which suit it and its workforce, rather than bargaining with its competitors for conditions that will apply across multiple enterprises experiencing different commercial constraints. On the downside, as my colleagues at Seyfarth, Chris Gardner and Michael Tamvakologos opined in their blog post Multi-employer bargaining under “Secure Jobs, Better Pay” – 10 implications for employer in December 2022, unions may seek a premium from employers for making a single enterprise agreement.

The Commission is also unable to order a business to bargain for a multi-employer agreement if a majority of its employees who would be covered by the proposed multi-employer agreement do not want to be covered by the multi-employer agreement. This emphasises the primary importance of maintaining the best possible relationship with employees and ensuring – to the extent possible – that the business is a trusted “source of truth” on employment conditions and benefits. The alternative, a union becoming that source of truth, is a sure pathway to bargaining with one’s competitors for a multi-employer agreement.

Whatever the outcome of this case, resources sector employers will be at the forefront of the bedding down of the recent workplace reforms and will need to stay on top of developments to ensure they can protect their businesses and obtain any possible competitive advantage in the labour market.

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Conducting workplace investigations into sexual harassment claims is challenging, and especially so across borders. Multinational organisations that implement robust, cross border investigation procedures can significantly lower their risk of facing disputes and legal actions.

In this webinar, Seyfarth partners will explore managing sexual harassment claims in the Asia Pacific region, where diverse legal landscapes and cultural norms further complicate cross border investigations. Topics include:

  1. Regional nuances: Key similarities, differences, and risks in jurisdictions such as Australia, Hong Kong, Singapore, and the People’s Republic of China.
  2. Employee protections and compliance obligations: The heightened risks of non-compliance and critical employee protections in APAC jurisdictions.
  3. Best practices for multinational employers: Steps to ensure fair and legally compliant investigations.
  4. Case studies: Real-world examples of effective cross-border investigation strategies in the Asia Pacific region.

This webinar is ideal for HR Directors, Employment Counsel, General Counsel, and professionals responsible for managing cross-border workforces, including in Asia or Australia.

Speakers
This panel brings together Seyfarth lawyers with extensive experience in handling cross-border employment law, workplace investigations, compliance, and risk management challenges across the APAC region and globally.

Our speakers are:

Matthew Banham, Partner, White Collar Defense & Litigation

Kathryn Weaver, Partner, International Employment Law

Erin Hawthorne, Partner, Employment and Industrial Relations

Rebecca Lim, Counsel, International Employment Law

Leon Mao, Counsel, International Employment Law

This session is being pre-recorded and a link to the recording will be distributed to all who register.

Register here for the webinar and to secure your recording.

Employers in the resources sector are watchful of legal developments in 2025 that could significantly impact their labour strategies, particularly their ability to engage, utilise and remove contractors. With non-labour costs rising and commodity prices remaining below their 2022 peaks, companies are under pressure to find ways to reduce labour costs.

In this two-part series, I will look at three cases before the Australian courts and Fair Work Commission, which have the potential to significantly impact how employers in the resources sector navigate their labour arrangements.

Labour hire and the ‘same job, same pay’ conundrum

One common strategy to reduce labour costs and maximise flexibility has been to replace higher-cost workforces, in full or in part, with labour hire. However, this approach has become more challenging due to a number of regulated labour hire arrangement orders being made in the coal mining sector. These orders, known as ‘same job, same pay’ orders, require labour hire employers to pay employees the same rates as the employees of the host and generally lead to increased labour costs.

The Fair Work Commission is set to decide whether to issue same job, same pay orders requiring BHP group companies – OS MCAP Pty Ltd (OS Production) and OS ACPM Pty Ltd (OS Maintenance) – to pay their employees the same rates as those paid by their client, BHP Mitsubishi Alliance (BMA), at several coal mines in Queensland. The Mining and Energy Union argues that OS Production and OS Maintenance supply employees to BHP to perform work for it, while BHP and the OS entities claim they provide a service, not just labour. This distinction is crucial because if the Commission rules that they are providing a service, it cannot issue a ‘same job, same pay’ order. 

It is hoped that this case will provide some guidance on the distinction between a provider of labour and a provider of services. A broad interpretation of a ‘provider of labour’ in this case could result in unions seeking further same job, same pay orders against companies traditionally seen as service providers. This could have ramifications for any service provider regardless of sector.

Reducing contractors before direct employee redundancies

As margins tighten, companies may need to reduce direct employee numbers, potentially due to changes in rosters or operational fleet reductions. Employers are keenly watching a High Court case involving Helensburgh Coal Pty Ltd, which is appealing a decision of the Full Court of the Federal Court that it could not use the genuine redundancy defense in unfair dismissal claims because it had not reduced its reliance on contractors before terminating direct employees.

The genuine redundancy defence is not available if it is reasonable to redeploy employees. The Full Court found that the Fair Work Commission should consider whether an employer could free up work for redeployment by reducing reliance on contractors. Helensburgh argues that the Commission should not have the authority to effectively require employers to terminate existing staffing arrangements to free up work for otherwise redundant employees.

So, what impact will this case potentially have on employers? Industries that rely heavily on contractor workforces, such as the resources sector, are concerned that they may be required to cut contractor numbers before reducing their own workforce, even if contractors provide a more commercial solution. The High Court’s decision will provide guidance on whether businesses must direct their suppliers to reduce their headcounts before making their own employees redundant.

The outcomes of these cases will have significant implications for resource sector employers. They will provide clarity on the distinction between labour and service providers and whether companies must reduce contractor numbers before making direct employee redundancies. As these decisions unfold, employers will need to adapt their labour strategies to comply with new regulatory environment to maintain economic viability.

In part 2, I’ll focus on a recent Fair Work Commission case which may reshape how employers approach enterprise bargaining.

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The landscape of transgender employment laws is evolving globally, with various jurisdictions adopting laws that ensure inclusivity and non-discrimination in the workplace. This area is one of the most complex issues in employment law systems and has generated much controversy. Notwithstanding this, many global companies seek to support and promote the interests of women regardless of their gender identity or expression. This commitment aligns with the broader international trend of recognising the rights of transgender individuals in the workplace. Transgender rights have been part of broader DEI initiatives for some time and are protected by law in some countries. There is an emerging body of law considering how these transgender legal protections interact with existing legal protections based on sex or gender.

In this blog we consider, in the international context, a recent decision of the Federal Court of Australia that has been noticed around the world. We have focussed on selective jurisdictions for the purposes of comparison, but this issue is much wider than the limited number of countries referred to in this blog.

The Australian case

In Australia, the recent decision of Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 looked at the removal of a transgender woman (Ms Tickle) from a female-only networking and dating app known as Giggle because on a visual inspection, someone responsible for administration of the app, had determined that she was a man (and therefore ineligible to participate).

Ms Tickle is a transgender woman whose female sex is recognised by an official updated Queensland birth certificate.

The respondents’ conduct was found to be unlawful gender identity discrimination in the provision of goods and services, on the basis that:

  • the app was imposing a requirement that users appeared to be (cisgendered) women, based on an examination of their profile photo
  • while this requirement applied equally to everyone, it had the effect of disadvantaging transgender women, and
  • in the circumstances, the requirement was not reasonable.

The respondents argued that Ms Tickle was believed to be a male, meaning there was no discrimination because of gender identity, and that Ms Tickle was denied access to the App based on her sex at birth, which they considered to be male. They also argued that the Giggle app should be considered as a ‘special measure’ to achieve substantive equality between men and women.

The Court rejected these arguments:

  • confirming prior cases that had found that a person’s sex is changeable and “sex can refer to a person being male, female, or another non-binary status”
  • determining that the respondents had engaged in conduct in breach of the clear Parliamentary intent to prohibit discrimination on the ground of gender identity in the provision of goods and services
  • commenting that “It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination.”

The respondents were ordered to pay $10,000 plus Ms. Tickle’s legal costs. Their evidence in the case was that they had also made the decision to close down the Giggle app.

Australia

Under the Sex Discrimination Act 1984, gender identity has been a legally protected ground since 2013. However, the Australian Human Rights Commission has described this as the first case of its kind to go before the court.

This case highlights the need to be cautious in Australia before implementing any measures intended to advance the interests of a group based on sex or gender, if such measures exclude persons with different gender identities. Unless the measure (and discriminatory impact) can be shown to be reasonable or come within a ‘special measures’ exemption to remedy certain types of existing sex-based inequalities, then there is a real risk this would be unlawful.

United States

In the United States, the legal position on transgender protection is more nuanced. National (Federal) law bars discrimination based on sex under the Civil Rights Act of 1964. The United States Supreme Court has determined that this prohibition in extant law precludes drawing a distinction between cisgender and transgender individuals in the employment context. However, Courts continue to grapple with how this ruling applies to similarly worded prohibitions in education and public accommodation law, as well as to analyse its meaning under the United States Constitution. The Supreme Court’s reasoning in the employment context hinges on the rationale that treating a transgender female differently from a cisgender female is discriminatory sex stereotyping. However, in the employment context there remain many unanswered legal questions in the United States including balancing the interests of religiously motivated private employers and employees with the interests of transgender and non-binary individuals. The Courts in the United States have not (at this stage) adopted the Australian position that measures to advance a group based on sex or gender cannot exclude persons with different gender identities.

United Kingdom

In the United Kingdom, the legal meaning of ‘sex’ is unclear due to a conflict between the definitions of ‘sex’ under two pieces of legislation: the Equality Act (“EA”) 2010 (the UK’s anti-discrimination legislation) and the Gender Recognition Act (“GRA”) 2004 (the UK’s gender change legislation). Under the GRA, if a person has a gender recognition certificate (“GRC”), the affirmed gender in that certificate is their gender for all purposes and is their ‘legal’ sex; whilst under the EA ‘sex’ (which is a characteristic that is protected from discrimination) is not clearly defined (i.e., it is ‘a reference to a man or a woman’).

This conflict has resulted in particularly prominent legal challenges in Scotland as to whether ‘sex’ for the purposes of the EA means biological sex or recognises the legal sex of people with a GRC. This conflict will take the national stage in November 2024 when the UK’s Supreme Court hears For Women Scotland’s appeal of a judicial review decision on the legal definition of the word ‘woman’ (this litigation was first lodged in the context of the Scottish government’s definition of ‘woman’ in 2018 legislation on gender representation on public boards). The UK Supreme Court’s decision should provide clarity on the extent to which sex under the EA is defined as biological or legal.

Both pieces of legislation have also become the subject of increased political polarisation. In April 2023, the UK’s Equality and Human Rights Commission recommended to the Minister for Women and Equalities that the government carefully consider redefining sex in the EA as biological sex; it said that this would bring greater legal clarity in eight areas (including single sex and separate sex spaces), but acknowledged that doing so would create ambiguity and potential disadvantage in three other areas.

In June 2024 (before its defeat in the General Election), the Conservative Party pledged to re-write the EA so that it defined ‘sex’ as biological sex, but a Labour frontbench MP said that guidance (rather than amending the EA) would be sufficient for clarifying the uncertainty here. In 2023, the UK’s Conservative government also rather controversially blocked the Scottish parliament from enacting legislation that would have made the Scottish process for obtaining a GRC easier. Conversely, the Labour Party’s 2024 election manifesto pledged to make it procedurally easier for transgender people to legally change their identity. We must wait to see how the Labour Party’s election to government in July 2024 impacts the ongoing discourse on this matter.

From an employment perspective, UK employment tribunals have found that holding gender critical beliefs (i.e., the belief that sex is immutable and biological) can be a protected philosophical belief capable of protection from discrimination under the EA. However, the manifestation of such beliefs in behaviour might not be protected depending on what those behaviours are and how they impact on the legal rights of others not to be discriminated against on the basis of their sex or gender reassignment.

Hong Kong

Legal developments around gender identity in Hong Kong have largely been premised on constitutional rights enshrined in the Basic Law (for example, the right to marry and the right to privacy), rather than any express prohibition of gender identity discrimination. Gender identity is not a protected characteristic under Hong Kong’s anti-discrimination legislative framework, which has only four ordinances covering sex, disability, race and family status.

The progression of gender identity rights in Hong Kong has been gradual and piecemeal, with limited case law to rely on. In 2013, a Court of Final Appeal case ruled that the interpretation of the Marriage Ordinance, which treats a transgender female (having undergone full sex reassignment surgery) as a “man”, was a violation of her constitutional right to marry by preventing her from marrying under her acquired gender. Following this, in 2017, the Hong Kong government set up an Inter-departmental Working Group on Gender Recognition to consider making legislative changes to reform transgender rights in Hong Kong. However, there has been little progress on this, which may be because gender identity remains a very divisive topic in Hong Kong. In February last year came a significant development in gender identity rights when the Court of Final Appeal ruled that the policy of barring transgender people from changing their gender markers shown on ID cards unless they underwent full sex reassignment surgery was unconstitutional because it violates the right to privacy.

Italy

In Italy, transgender persons have several legal protections and rights. Since 1982, transgender people in Italy have been allowed to change their legal gender. This process involves both medical and legal procedures.

Additionally, discrimination based on gender identity in employment has been prohibited in Italy since 2003. This means that employers cannot legally discriminate against transgender individuals in hiring, promotion, or any other aspect of employment.

Discrimination based on gender identity is prohibited in various contexts, including employment and public advertisement. The Italian Constitutional Court has ruled that non-binary individuals’ rights are also protected under the principles of social identity, equality, and the right to health as guaranteed by the Italian Constitution.

Whilst these legal protections are significant, Italy still faces challenges in achieving full equality for transgender individuals, particularly in areas like healthcare access and social acceptance. Many transgender individuals in Italy still face challenges in the workplace. Surveys have shown that a significant number of LGBTQIA+ workers, including transgender individuals, feel that their careers have been negatively impacted by discrimination.

The traditional legal approach of balancing competing interests creates particular difficulties when dealing with issues like the dignity of people or fundamental philosophical beliefs. Courts in every country are going to have to decide what of these interests are the most important.

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In light of recent legislative changes in the United Kingdom, from 26 October 2024, UK employers have a new duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment.

This caused us to reflect on the key lessons that can be drawn from Australia’s experience with very similar legislation introduced in December 2022.

The aim of the new(ish) framework is for employers to anticipate scenarios when their workers may be subject to workplace sexual harassment and take positive action to prevent them.

Employment Law Partner Rachel Bernasconi and Work Health and Safety Partner Sarah Goodhew give some practical and real-life reflections below based on their experience in assisting clients to understand and operationalise the new duty from an employment law and work health and safety perspective.

What does the positive duty to prevent sexual harassment of or by their workers mean for employers in Australia?

Rachel: The duty requires all organisations to take “reasonable and proportionate” measures to eliminate unlawful workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments on the ground of sex, and victimisation related to complaints about these issues. The big shift here is that it’s no longer enough for employers to wait for complaints to arise and mitigate incidents of harassment—they have to actively prevent them through risk assessments and other measures such as training and creating safe reporting systems.

Sarah: This duty aligns closely with existing work health and safety (H&S) obligations for organisations to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to their psychological or physical health and safety. This includes psychosocial risks such as sexual harassment and sex or gender-based harassment. In Queensland, there are specific regulations relating to the control measures to be implemented to address these risks.

How have Australian employers adapted their practices to meet this duty?

Sarah: Organisations are integrating what have historically been two separate functions, drawing on their experiences from the traditional ‘HR’ and ‘safety’ functions. This includes integrating sexual harassment prevention into their broader safety management systems and utilising existing frameworks such as their H&S risk assessments and management processes. This can include regular audits, clear reporting mechanisms, and the use of technology to enhance prevention efforts. Many organisations have implemented anonymous reporting channels and use data analytics to identify trends and areas needing attention or to assess the effectiveness of control measures. Previously, safety teams have taken a much more structured approach to compliance issues than their HR counterparts, but we are seeing the more rigorous safety-oriented risk management approach being applied in the employment context more and more.

Proactive organisations are embedding this approach so that there is transparent reporting to Board committees and integration with audit, risk and whistleblower frameworks.

Rachel: We’ve seen engaged employers use a multi-disciplinary approach (i.e., including business stakeholders from legal, HR, safety, operations, and leadership) to proactively identify how the risks of sexual harassment might arise in each part of their businesses, what control measures are already in place and how those measures can be enhanced to avoid or mitigate risks. Quite often they are taking this approach more broadly in relation to managing workplace psychosocial risks (of which workplace sexual harassment is just one). We’ve also seen a change to the approach some organisations are taking to their training programs to go beyond the traditional annual tick-box exercise. Organisations that are genuine in wanting to proactively address sexual harassment risks are implementing more comprehensive programs by including mandatory leadership training (including at the Board level), regular refresher courses for all employees, and bystander intervention training. This also has implications for the frequency and updating of training modules, to capture learnings following any incident.

In addition, many Boards and senior leadership are taking a more proactive approach to acquiring knowledge and keeping up-to-date on their legal obligations in relation to sexual harassment, as well as understanding how their business controls this risk with a regular review as to the effectiveness of implemented measures.

What challenges have you seen Australian employers face in implementing these changes?

Rachel: The Guidelines from the Australian Human Rights Commission (the first instance regulator) (AHRC Guidelines) are so comprehensive (and to some extent impractical to achieve for businesses that operate in the real world) that many employers are overwhelmed. We say, make a start—if a regulator comes knocking, or employees are asking what their organisation is doing, you will be better placed if you have done something rather than nothing. We also recommend prioritising your actions in recognition of the fact that you can’t do everything immediately—work out your primary and secondary priorities based on risk, resources, and timing.

Sarah: In addition to the extensive AHRC Guidelines, there are also a variety of H&S guidance materials from regulators in various states that address both psychosocial hazards and sex and gendered based harassment. The overwhelm that Rachel has mentioned is very much seen on both the traditional safety and employment sides. I agree with Rachel that starting is important—organisations should start with a risk assessment and follow the health and safety risk management process to implement control measures based on the highest H&S risks in their business, using the hierarchy of controls.

The AHRC Guidelines encourage risk assessments to identify where sexual harassment may occur. Do you have any tips for employers to consider when undertaking these risk assessments?

Sarah: Yes, follow the risk management process for H&S risks. In Queensland, the new regulations that commenced on 1 September 2024 require a review of control measures following any report—even if unsubstantiated—of an allegation of sexual harassment or gender-based harassment. Time will tell how onerous such a requirement may be. A risk assessment should be reviewed on a regular basis, which will be informed by the levels of exposure and likelihood of the risk in your business.

Rachel: Yes, the approach I’ve outlined above to identifying risks is helpful because it ensures relevant stakeholders are at the table and have input. We also recommend this process is conducted regularly—this can’t be a ‘set and forget’ process that you do once and say you’re done.

Do the Australian laws cover harassment from customers, clients and other third parties, and do you have any tips for employers to address this?

Rachel: Yes, and it also includes harassment by employees of those third parties in a work setting. We are encouraging clients to build this into their risk assessments, so that they are thinking beyond the employee/employee harassment scenarios to all interactions that can occur in a work setting and how to mitigate those risks.

Sarah: Yes, the H&S duties in Australia extend to a very broad definition of ‘worker’, as well as to ‘other persons’ in the workplace. From a safety perspective, we are giving the same advice as Rachel to build this into the risk assessment process and into the implementation of control measures.

The key takeaways from these reflections are:

  1. Start somewhere and prioritise appropriately: Given the comprehensive nature of the guidance materials, it’s better to start the process and show a genuine effort rather than being overwhelmed and do nothing. Prioritise actions based on your organisation’s specific risks, resources, and timing.
  2. Thorough risk assessments are key: These assessments should identify the particular risks within each organisation’s unique working environment (e.g., where there may be power imbalances, involvement of alcohol, or employee interactions with clients, customers, and other third parties).
  3. Take a holistic approach: It is not enough to simply update policies. Employers need to take a range of steps to show compliance and implement a proactive risk management approach.
  4. Board and senior leadership buy-in is crucial (and legally required to discharge their individual proactive officer due diligence obligations): Senior role models set the tone and drive meaningful change throughout the organisation. Without it, efforts will lose momentum.
  5. Integration with existing systems: Employers don’t need to reinvent the wheel. Instead, they should integrate sexual harassment prevention into their broader safety management systems, utilising existing frameworks like H&S risk assessments and management processes.
  6. Robust and clear reporting systems are essential: Employers should consider anonymous reporting channels and how they can use reporting systems to gather data, spot trends, and pinpoint risk areas. Businesses should ensure reporting up to Board level about sexual harassment matters at a regular cadence.
  7. Adopt a multi-disciplinary approach: Employers should involve stakeholders from various departments (e.g., legal, HR, safety, operations, leadership, audit and risk) when identifying risks and developing prevention strategies.
  8. Ongoing review: Compliance is not a one-off task. Employers must regularly review and update their prevention strategies to ensure they remain effective, adapting them based on feedback, new risks, and/or incidents. Boards and senior leadership need to ask the right questions to understand what is going on in the business and what can be done better.

What are considered ‘reasonable steps’ will vary depending on the employer’s size, available resources and risk factors. But employers generally need to: (1) consider potential risks; (2) develop comprehensive action plans to address and mitigate such risks; and (3) implement proactive measures to prevent such incidents occurring. Harassment is not just an employee relations issue—it is a health and safety issue, and a reputational one, and needs to be treated with the utmost seriousness.

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In recent months, I’ve spoken to many HR professionals about all things employee relations or “ER.”

What stood out was the challenging nature of the role of those in ER.

The role of ER has never been more valuable to Australian employers, whose workplaces have never been more regulated.

Yes, compliance is a must, but meeting business objectives is also a must.

ER is at the pointy end of keeping a business out of trouble and getting things done.

The passion with which some very experienced HR leaders spoke inspired our paper Navigating Employee Relations: The Advisor’s Role (available upon request here). This is based on that feedback.

It’s built on four themes: mastery, judgement, strategy, and influence.

Off the back of our paper, Navigating Employee Relations: The Advisor’s Role, I’m writing a series of five blogs. This is last in the series and it’s on “influence.”

You can have the best advice, but it’s useless if it doesn’t ‘land’. You can be right, but find yourself on your client’s “wrong” side. I’ve seen many examples of the same advice given but in a different way with vastly different outcomes for the advisor-client relationship. Indeed, when called upon to second guess an advice given by another law firm, I’m looking for how that advice was conveyed as a clue to why a second opinion has been sought.

The starting point is about building context. It’s about filling the void which otherwise sees you advising in a vacuum.

Navigating Employee Relations: The Advisor’s Role recommends adopting the “clinician mindset.”

You are embarking on a diagnosis. The diagnosis can only follow a solid understanding. Questions and the power of inquiry are your best friend here.”

– Navigating Employee Relations: The Advisor’s Role (point 39)

Great ER professionals listen well, address emotions, and deliver advice with empathy. There is the inevitable urge to “tell” early in the conversation. You are the advisor, after all. But the best advisors are great listeners first.

Decision-makers often seek a quick and binary answer: “Can I do this or not?” or “When can we do this?” Or they seek an inherently problematic pathway: “Tell me how I can do this.”

If your advice is counter to the stated need, you had better demonstrate your understanding of the problem first. If you don’t, your client will assume that your advice is flawed out of a lack of appreciation of what’s needed. This is why empathy is critical. Your client only has so much headcount, only has so much budget, is expected to deliver more with less, and is facing tougher competition in the market. Then you say, “Yes, we have to allow this flexible work request”, or “No, we can’t remove this poor performer,” or “No, the Award won’t allow you to roster in this way.”

Your advice may be right. But it’s ripe for challenge on the basis of “whose side are you on?”

As this blog series has highlighted, ER advisors are delivering complex advice. If there is a decision tree, the tree has branches whose pathways call for a degree of speculation about outcomes. It’s often difficult for managers who run operations built on clear and well-defined processes to understand the ambiguous and nuanced environment in which you advise. For example, it’s a legal environment where “reasonableness” is often the touchstone for what can or cannot be done. Reasonable minds can differ about where a decision ought to lie based on such a nebulous concept.

The complexity is compounded where: (1) you don’t understand the need, (2) they don’t understand the ambiguity, and (3) the balance of consequences is ill-defined. Point three takes us back to risk (see part three of this blog series).

Remember, empathy is key because emotions are involved. And in the most challenging advisory situations your relationship is fundamental. If they trust you, life is easier for you and your stakeholders. Build trust to be a better advisor.

This concludes our series aimed at the “ER” community looking to grow in their role. We hope you gained some valuable insights. Remember, if you would like a copy of our paper Navigating Employee Relations: The Advisor’s Role or to learn more about our ER Mastermind program, please click here.

Read the rest of the blog series here.

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The right to disconnect has been in the media a lot. But if we look behind the headlines, what impact is it actually going to have?

The new laws give employees a limited right to ignore work-related contact outside of working hours. This right is limited by what is reasonable. It does not:

  • outlaw reasonable out-of-hours contact; or
  • give employees rights to unreasonably ignore work-related communications.

Given the Fair Work Act 2009 (Cth) has always prohibited unreasonable additional work outside of ordinary hours, what – if anything – does the new right to disconnect actually add?

What can employers expect?

There are some new issues to navigate here:

  • Some employees may now wrongly choose to ignore contact that should have been actioned.
  • Employee grievances will include alleged breaches of this new right if they have been contacted out of hours. Disputes and general protections claims will no doubt follow.
  • The circumstances in which out-of-hours contact is reasonable, and when there is a right to ignore it, will be hotly debated in all of these scenarios. Large penalties can apply for getting it wrong.
  • If employees ignore out-of-hours contact, any disciplinary response needs to be managed carefully to minimise risks.

The new law does not require every business to suddenly change existing arrangements or introduce new policies. If out-of-hours contact is already managed reasonably, then the right to disconnect might not have a big impact at all.

That said there could be some “hidden” consequences – for example:

  • While the right to disconnect doesn’t specifically require more payments to be made for out of hours contact or work, unions and employees may use this to claim more benefits.
  • Businesses scared of getting this wrong might:
    • try to standardise working hours to minimise out-of-hours contact, which could pose challenges for flexible working; or
    • err on the side of avoiding contact even if that means going short staffed instead of offering workers a last-minute shift.

Will this change how Australian businesses and workers operate?

Rights to disconnect have existed in some overseas countries for some time. The experience in those jurisdictions has indicated a modest impact, not a wholesale revolution.

Given that Australia has had very few legal cases involving disputes about unreasonable work outside ordinary hours, we will need to wait to see if this new disconnect right has much of an impact after the news cycle has moved on.

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In recent months, I’ve spoken to many HR professionals about all things employee relations or “ER.”

What stood out was the challenging nature of the role of those in ER.

The role of ER has never been more valuable to Australian employers, whose workplaces have never been more regulated.

Yes, compliance is a must, but meeting business objectives is also a must.

ER is at the pointy end of keeping a business out of trouble and getting things done.

The passion with which some very experienced HR leaders spoke inspired our paper Navigating Employee Relations: The Advisor’s Role (available upon request here). This is based on that feedback.

It’s built on four themes: mastery, judgement, strategy, and influence.

Off the back of our paper, Navigating Employee Relations: The Advisor’s Role, I’m writing a series of five blogs in five weeks.

So here’s blog four in our ‘5 of 5’.

One of those themes is “strategy”. Strategic thinking is essential for ER Professionals because it involves looking beyond the immediate, to develop optimal, long-term solutions. Observations on “strategy” and “strategic thinking” are ubiquitous. Formulas abound, very much context driven. Fundamentally, the many takes on “strategy” reveal some core elements: where are we, where do we want to be, and how will we get there?

Being “strategic” is often synonymous with “big picture’’ thinking. It’s the ability to see patterns, themes or connections. It’s the ability to ask: is this a trend, or what can we be doing to guard against this in the future? It’s factoring in company-wide implications for the issue at hand. It’s balancing the long term with the short term. It’s also ensuring that a problem is examined from various perspectives. It’s about looking ahead.” 

– Navigating Employee Relations: The Advisor’s Role

But how do you develop strategic thinking? Strategic thinking requires understanding the broader context, including organisational goals, stakeholder interests, and the interplay of various factors. It’s a skill that can be developed.

It involves asking insightful questions, balancing short-term and long-term implications, and considering different perspectives to make informed decisions. Judgement is key here (see our previous blog – Part 3 – about judgement here).

To enhance strategy, models like SWOT and GROW can be leveraged to guide decision-making and ensure that advice aligns with organisational objectives and values. They are the very type of models that build skill as a strategic thinker. They can provide a lens through which to think about a problem.

Great advisors excel in the skill of “inquiry” by asking insightful questions at the right time to uncover deeper meaning and needs. Advisors are called upon to provide advice. So, it’s natural to want to ‘tell’. But great advisors excel at asking questions first. They are not afraid to ask “why”, “what else”, “how do you see…”, or “what matters most here?”. This is where the advisor turns coach.

Asking questions leads to a better understanding of reality (the current situation) which can provide reason for reconsidering a goal (desired outcome), as can consideration of alternatives (options). It’s about getting clarity. From our paper, comes this basic example to illustrate the point:

Manager: I really want to sack my head of sales (Goal)

You: Okay, why is that?

Manager: Just not performing. Sales are down. Direct reports are complaining about his attitude. I don’t think his head is in the right place. I’m having to pick up the slack. (Reality)

You: Why do you think that is?

Manager: I don’t know. He’s been grumpy, and I don’t think he’s happy with anything.

You: Why is that?

Manager: Don’t know – he’s hard to talk to.

You: What’s the impact of losing him now?

Manager: Terrible. He’s been good in the past. He’ll be tough to replace.

You: So, ideally, he stays, but improves? (Options)

Manager: Yes (New Goal)

I look forward to sharing the last part of this five-part series with you next week.

If you would like a copy of our paper Navigating Employee Relations: The Advisor’s Role or learn more about our ER Mastermind program, please click here.

Read the rest of the blog series here.

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