We have psychosocial risks, of which sexual harassment is one of the most common hazards. We have a new positive duty to prevent sexual harassment at a federal level that we discussed in our previous blog. The duties are at least similar: “So far as is reasonably practicable’’ under health and safety law and “reasonable and proportionate measures” to prevent sexual harassment.

Traditionally, HR has lent expertise and leadership in relation to the prevention of, and response to, sexual harassment. Not surprisingly, HR is drawing on their health and safety specialists in adopting a safety-driven approach – a systems and risk management-based approach.

At Seyfarth, we are adopting the same: bringing together our safety and employment law expertise on this important issue for the benefit of our clients.

In doing so, the following questions are typically being asked:

  1. What should a hazard and risk assessment entail?
  2. When is sexual harassment (or an allegation of sexual harassment) reportable to a safety regulator?
  3. How should a sexual harassment investigation be handled?
    • What steps need to be considered to support the wellbeing of all parties during an investigation?
    • What changes does a trauma-informed approach require when compared to a standard investigation?
    • What about the right against self-incrimination?
  4. What are our control measures for addressing this risk?
  5. How do we respond to an incident:
    • Being the incident itself;
    • The impacts of the investigation;
    • The interaction with any police procedure or regulatory investigations; and
    • More broadly?
  6. To this end, how and when do we monitor control measures?
  7. What audits/surveys, if any, should be undertaken, and to what end?
  8. What should be reported to management about unproven allegations and how should this factor into workplace decisions?

For HR, there is the realisation that traditional HR measures alone (training, a policy and a complaints process) won’t be sufficient to satisfy the positive duty.


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Photo of Sarah Goodhew Sarah Goodhew

For nearly 15 years, Sarah has worked with a range of clients—predominantly in the resources, retail, and transport sectors—in responding to regulator investigations, preparing and defending work health and safety prosecutions, and representing clients at coronial inquests. During this time, Sarah has gained…

For nearly 15 years, Sarah has worked with a range of clients—predominantly in the resources, retail, and transport sectors—in responding to regulator investigations, preparing and defending work health and safety prosecutions, and representing clients at coronial inquests. During this time, Sarah has gained a valuable working knowledge of various aspects of client operations that provides a practical, realistic aspect to her legal advice—from the intricate knowledge of how her clients operations work, to how her clients distinguish themselves in their market.

Photo of Erin Hawthorne Erin Hawthorne

Erin enjoys using the opportunities presented by difficult employment and industrial problems to deliver outcomes for her clients.

She has worked in both private practice and in-house roles and uses her experience of being a client to deliver the best legal strategy through…

Erin enjoys using the opportunities presented by difficult employment and industrial problems to deliver outcomes for her clients.

She has worked in both private practice and in-house roles and uses her experience of being a client to deliver the best legal strategy through a lens of practicality.

An experienced litigator representing employers when litigation is unavoidable or advantageous, she has the game plan needed to protect or attack.

Photo of Chris Gardner Chris Gardner

“Strategic”. That’s how clients consistently describe Chris.

Starting with the end in mind, he understands that legal advice is only one piece of the jigsaw when balancing strategy and risk.

Clients know they’ll receive advice that fits into the bigger picture.

Best recognised…

“Strategic”. That’s how clients consistently describe Chris.

Starting with the end in mind, he understands that legal advice is only one piece of the jigsaw when balancing strategy and risk.

Clients know they’ll receive advice that fits into the bigger picture.

Best recognised for workplace change and enterprise bargaining, Chris’ work has seen him at the forefront of engagements that matter. Countless employers have benefited from the pragmatic and solution-orientated advice that he is known for.

You may have seen him in Boss magazine, heard him on Qantas Q Radio or Foxtel’s Law TV. He is also famous for his collection of Elvis artefacts.