Safety Prosecutions of Sexual Harassment

After much anticipation and fanfare, the Victorian Government has finally introduced its new psychological regulations (Regulations) and they are disappointing to say the least. In 2021, the Victorian Government was the first to lead the charge against psychosocial hazards, their draft regulations imposed significant obligations on employers to protect their employees from psychological harm.

Yet after four long years, the Victorian Government has stripped back everything that made a difference. There’s no longer any requirement for employers to:

• Prepare Prevention Plans on bullying, sexual harassment, occupational violence, exposure to traumatic events and high job demands (although this remains a recommendation under the Code of Practice); or
• Complete mandatory reporting to the Regulator of any complaints of bullying, sexual harassment or occupational violence.

Instead, the Regulations are probably the weakest of any jurisdiction in Australia and does no more than incorporate the basic duties under the Model Regulations including obligations to:

(1) Identify psychosocial hazards;

(2) Control risks of psychosocial hazards;

(3) Review risk control measures (including by request of a HSR).

There has been some excitement in the media as the Regulations make it clear that breaches cannot give rise to any other causes of action – but this is nothing new and it is simply codifying the existing law.

A Compliance Code (Code) has also been introduced as practical guidance on how to eliminate and reduce the risk of psychosocial hazards. The Code is problematic as it highly prescriptive yet will be taken as evidence of what is considered ‘reasonably practicable.’

While the Regulations are not as powerful, employers should not become complacent. Recent court prosecution trends highlight Regulators are prioritising psychosocial prosecutions beyond just bullying cases. We discuss the trends below.

Safety Prosecutions of Sexual Harassment

Previously, sexual harassment was only dealt with under employment law, but recently Regulators have been pursuing individuals and companies under safety law. Courts are increasing punishment for sexual harassment cases to deter perpetrators and ensure companies have sufficient safety systems in place to protect their employees from sexual harassment.

In November 2023, in the case of WorkSafe v Whitelom Investments, both the company and the Manager received significant fines for substantial touch-based sexual harassment. The Manager’s offending had occurred over many years and he had targeted six young workers and subjected them to inappropriate touching and intrusive and suggestive comments. After a guilty plea, Mr Whitelock was fined $40,000 and the company was charged under section 21(1) and 26 of the Occupational Health and Safety Act 2004 (VIC) (OHS Act) and fined $150,000.

Yet only two years later, Oz 22 Painting Pty Ltd was fined $90,000 for much less egregious non-touch-based conduct. The Director’s husband had made comments about a worker’s hair and appearance, made repeated requests to spend time with her, put his arm around her neck and pressured her to spend the day with him and go to a hotel. While these are all unacceptable behaviours, the focus of the court was on the company’s failure to create and implement a policy on appropriate workplace behaviours.

Only two months after the previous case, Blisspell Pty Ltd received a $100,000 fine for failing to have any formal system in place to prevent or respond to incidents of inappropriate workplace behaviour. The allegations of sexual harassment in this case were considered relatively minor as they were limited to inappropriate comments and intrusive messages but did not go beyond that. Yet that was sufficient to incur a substantial penalty.

These cases show the significant increase in Court fines when dealing with all forms of sexual harassment. This sends a clear signal to all companies and perpetrators that this will not be accepted under safety law.

Prosecutions of Other Psychosocial Hazards

Regulators all around Australia have brought psychosocial prosecutions, particularly against Government departments. The most successful prosecution has been of Court Services Victoria (CSV), who received a fine of $379,157 for failing to protect workers from a toxic workplace at the Coroners Court including repeated exposure to traumatic materials, unreasonable workloads, inappropriate workplace behaviour and poor workplace relationships due to favouritism. Despite multiple complaints and significant absenteeism, CSV failed to act or intervene. Eventually this led to the principal in-house Solicitor developing a work-related major depressive disorder culminating in the loss of her life in September 2018. CSV admitted they had failed their employees by failing to undertake any risk assessment of psychosocial hazards. The charges against CSV were only primary duty breaches under section 21(2) of the OHS Act, but it won’t be long before the Regulators start focussing on targeting individuals under reckless endangerment or reckless conduct which carries a risk of imprisonment.

In August 2022, the Commonwealth Director of Public Prosecutions brought primary duty charges against the Department of Defence (DoD) due to the death of a Royal Australian Air Force Technician, who took his life while on duty at the base at Williamstown in July 2020. Specifically, the DoD has been accused of failing to manage psychosocial risks, provide safe systems of work and provide the necessary information to protect their workers. Three years on and this case remains active, and the DoD’s three charges carry a maximum penalty of $2.5 million.

In September 2023, WorkSafe VIC charged the Victorian Building Authority (VBA) with primary duty breaches and recklessly endangering a life of an inspector. While being aware of the risk of psychological injury, the VBA refused to transfer the inspector to another supervisor while they were undergoing performance and restructuring processes. In May 2022, the inspector took their own life. This was the first time reckless endangerment charges have ever been laid in respect of psychosocial hazards. Unfortunately, after a three-day committal hearing, Magistrate Parker ruled there was insufficient evidence for a jury to find there had been reckless endangerment, and the charge was struck out. It remains to be seen what VBA will be fined for failing to provide a safe workplace and provide and maintain an adequate system of work that would reduce the risk of stress and psychological injury. This shows that while Regulators have an appetite to pursue companies for reckless endangerment, it is almost impossible for them to meet the high evidentiary threshold. Truthfully it would have been easier for the Regulator to prove workplace manslaughter or even to pursue the VBA under the Crimes Act 1958 (VIC).

Most recently in April 2024, the Commonwealth Director of Public Prosecutions has filed three primary duty charges against the DoD relating to psychosocial risks at a Queensland Army base. Specifically, it is alleged DoD failed to reduce psychological stressors of an Australian Defence Force member who was geographically isolated which exposed them to a significant risk of death or serious injury. DoD could have conducted regular welfare checks and referred the member for health assessments. The case remains ongoing but the DoD’s three charges carrymaximum penalties totaling $2.5 million.

These cases highlight that Regulators around Australia are prioritising psychological prosecutions. As with any new changes in the law, Regulators are focussing on the thin end of the wedge, and they are prioritising high profile cases which have already caused serious consequences. It is only a matter of time before the Regulator starts to look further afield.

Hope for Employers

It is not all bad news for employers – the Regulators have also been forced to withdraw some recent psychological charges as they could not prove the cases beyond reasonable doubt.

Earlier this year, SafeWork NSW had to withdraw their landmark psychosocial prosecution against Western Sydney Local Health District (WSLHD). In 2022, the Regulator had charged WSLHD with failing to manage psychosocial risks when they were investigating complaints from two nurses. After three weeks of hearings, SafeWork NSW voluntarily withdrew all the charges as it was too difficult to prove the breaches under the NSW safety legislation.

Similarly, on 23 September 2025, WorkSafe WA also decided to withdraw their prosecution against the WA Department of Justice (DOJ). This was the first WA prosecution of psychosocial hazards. The Regulator had charged the DOJ with primary duty breaches alleging that a lack of appropriate procedures to manage bullying and harassment caused a female prison officer at Bunbury Regional Prison to suffer a significant psychological injury. The Regulator had previously issued the DOJ with an improvement notice requiring the creation and implementation of such procedures but there was non-compliance with the notice. Despite this evidence, the Regulator announced they have obtained fresh evidence in the course of proceedings which showed the DOJ had improved its management of psychosocial hazards which justified the withdrawal of the prosecution.

These two cases highlight the difficulty with prosecuting psychological safety. Psychosocial hazards are not like physical hazards – they are pervasive and are often found in every aspect of work. It is impossible to eliminate psychosocial hazards completely given the complexity of humans. Surprisingly the Regulators are still trying to treat psychosocial hazards through the same lens as physical safety – inspectors are cracking down on businesses and trying to force them to show compliance through heavy documented systems without addressing the underlying psychosocial issues. Until the Regulators change their, tactic they will continue to struggle with these psychosocial prosecutions. And in other states we have started to see them using their powers to intervene inappropriately – such as using improvement notices to stop or delay legitimate and valid restructures in universities. This is not to say that employers are all safe – if you do not have the basic systems in place, you will leave yourself open to an easy win for the Regulators.

So What Should You Do?

(1) Have four key documents in your safety infrastructure. A risk assessment tool, a policy, a governance structure informed by evidence and a risk register.

(2) Undertake regular pulse surveys to identify your problem areas within your organisation.

(3) Ensure you have a robust system in place – it doesn’t have to be expensive or complicated. Focusing on the minimum viable product will satisfy your obligations.

(4) Make sure your employees know the law – are they competent at identifying psychosocial hazards, determining risk based on frequency, duration and consequences and understand how to prevent or intervene using appropriate controls.

(5) Train your supervisors and managers – they are the first line of defence to identify and manage psychosocial hazards.

(6) Respond quickly – once it escalates to a claim it is often too late!

(7) Leaders must lead by example or nothing will change.

How Can FCW Help?

Our services include:

• Working with consultants under Legal Professional Privilege to identify the relevant evidence to understand organisational risk, build a governance and intervention strategy and roll out policy, assessment tools and reporting governance structure. Simply this means you get a compliant and agile system, but the evidence of risk is hidden from the prying eyes of regulators.
• Preparation of a detailed reporting system to satisfy your obligations under safety law.
• Auditing and drafting psychosocial management and appropriate workplace behaviour policies.
• Delivering tailored training to leaders and to employees so they can understand their obligations and learn practical tips to manage psychosocial safety.