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The law unequivocally prohibits sexual harassment in connection with work. Notably, there were significant amendments to the laws governing sexual harassment in the workplace as of 6 March 2023. 

What is workplace sexual harassment 

IMPORTANT

From 6 March 2023, the law prohibits (does not allow) sexual harassment in connection with work. 

A person must not sexually harass another person who is: 

  • a worker in a business or undertaking, or 
  • seeking to become a worker in a particular business or undertaking, or 
  • conducting a business 

if the harassment occurs in connection with the other person being or seeking to become a worker, or conducting a business. 

What is sexual harassment 

The law says that a person sexually harasses another person if they: 

  • make an unwelcome sexual advance, or an unwelcome request for sexual favours, or 
  • engage in other unwelcome conduct of a sexual nature 

 in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Sexual harassment can include: 

  • inappropriate physical contact 
  • intrusive questions about a person’s private life or physical appearance 
  • sharing or threatening to share intimate images or film without consent 
  • unwelcome touching, hugging, cornering or kissing 
  • repeated or inappropriate invitations to go out on dates 
  • sexually suggestive comments or jokes that offend or intimidate 
  • requests or pressure for sex or other sexual acts 
  • sexually explicit pictures, posters or gifts 
  • actual or attempted rape or sexual assault 
  • being followed, watched or someone loitering (hanging around) 
  • sexually explicit comments made in person or in writing, or indecent messages (SMS, social media), phone calls or emails – including the use of emojis with sexual connotations 
  • sexual gestures, indecent exposure or inappropriate display of the body 
  • unwelcome conduct of a sexual nature that occurs online or via some form of technology – including in virtual meetings 
  • inappropriate staring or leering 
  • repeated or inappropriate advances on email or other online social technologies   

Sexual harassment can involve conduct by one or more people and can be a single incident, repeated conduct or part of a course of conduct. 

Sexual harassment is against the law regardless of the sex, sexual orientation or gender identity of the people involved. 

The intention of the alleged harasser is not relevant. The conduct may be sexual in nature even if the alleged harasser has no sexual interest in the person harassed or is not aware that they are acting in a sexual way. 

Sexual harassment 'in connection with work' 

 The Fair Work Act 2009 applies to sexual harassment ‘in connection with work’.  

 For example, it applies where a worker is sexually harassed, when they are working, by: 

  • another worker 
  • a customer or client of the person’s employer or principal, a supplier of the employer or business, or 
  • a visitor to the workplace. 

 This definition applies where the sexual harassment happened or started on or after 6 March 2023. 

IMPORTANT

Employers or principals may be responsible (liable) for the conduct of their employees and agents. This means the conduct of the employee or agent is taken to be the conduct of the employer or principal. 

 If the sexual harassment happened or started before 6 March 2023 

 The law about workplace sexual harassment changed on 6 March 2023. 

 If the sexual harassment happened or started before 6 March 2023, the law applies to sexual harassment at work. This means the sexual harassment must have occurred when the worker was at work, in a constitutionally-covered business. A worker can be at work even when they’re working away from the work premises. 

 If a worker believes they were sexually harassed at work, and the harassment happened or started before 6 March 2023, they can apply to the Fair Work Commission for an order to stop sexual harassment at work. 

 Who is 'a worker' 

 A worker is a person who performs work in any capacity, including as:  

  •  an employee  
  • a contractor or subcontractor 
  • a small business owner who works in the business 
  • an employee of a contractor or subcontractor  
  • an employee of a labour hire agency 
  • an outworker 
  • an apprentice or trainee  
  • a student on work experience  
  • a volunteer. 

Managing Sexual Harassment Allegations at Work

In Australia, employers have a legal obligation to address sexual harassment allegations in the workplace seriously. Here are some key steps they need to take: 

  • Have a Clear Policy: Employers should have a well-defined sexual harassment policy in place that outlines what constitutes sexual harassment, the procedures for reporting incidents, and the consequences for offenders. 
  • Educate Employees: Regular training sessions should be conducted to educate employees about what constitutes sexual harassment, how to prevent it, and how to report incidents. 
  • Encourage Reporting: Employers should create a safe environment where employees feel comfortable reporting incidents of sexual harassment without fear of retaliation. 
  • Investigate Promptly: Once a complaint is made, employers must investigate the matter promptly and impartially. This may involve interviewing witnesses, collecting evidence, and consulting legal advisors. 
  • Take Appropriate Action: If the allegations are substantiated, the employer should take appropriate disciplinary action against the perpetrator. This may range from counselling and warnings to termination of employment, depending on the severity of the offense. 
  • Provide Support: Employers should offer support to both the victim and the accused throughout the process. This may include providing counselling services or facilitating mediation sessions. 
  • Maintain Confidentiality: It's crucial to maintain confidentiality throughout the investigation process to protect the privacy of those involved and prevent further harm. 
  • Review and Update Policies: Employers should regularly review and update their sexual harassment policies and procedures to ensure they remain effective and compliant with current laws and best practices. 

By following these steps, Australian employers can effectively manage sexual harassment allegations in the workplace and create a safer and more respectful work environment for everyone.