In Short
- Legal reforms in Australia have strengthened protections against sexual and sex-based harassment in the workplace.
- Business owners must ensure they have up-to-date policies and training programs to comply with these changes.
- Employers are encouraged to proactively foster a workplace culture that prevents harassment, and supports affected individuals.
Tips for Businesses
Review and update your workplace harassment policies to align with the latest legal standards. Implement regular training sessions for all staff, emphasising the importance of a respectful work culture. Create a clear reporting mechanism allowing employees to safely report incidents and ensure complaints are addressed swiftly and effectively.
Table of Contents
- What is Sexual Harassment?
- How Does Sexual Harassment Law Operate?
- What is Sex-Based Harassment?
- Examples of Sexual Harassment
- How Does Sexual-Based Harassment Law Operate?
- Managing the Risks of Sexual Harassment at Work
- What If Employers Breach Their Duties?
- Key Takeaways
- Frequently Asked Questions
As an employer, you must ensure that sexual harassment does not occur at work. In 2023, the law regarding sexual and sex-based harassment in the workplace was harmonised, including definitions, prohibitions and legal tools. This article explains what workplace sexual harassment is and your duties as an employer to prevent such harassment from arising.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
What is Sexual Harassment?
Sexual and sex-based harassment now fall within the broader category of “unwelcome and unreasonable conduct in the workplace”. Unwelcome and unreasonable conduct covers:
- bullying at work;
- sexual harassment and sex-based harassment at work; and
- subjecting a person to a hostile working environment on the ground of sex.
Sexual harassment is:
- an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- other unwelcome conduct of a sexual nature in relation to the person harassed.
The circumstances that the reasonable person must have regard to include (but are not limited to):
- the attributes of the person harassed, including their sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin;
- the relationship between the person harassed and the person who engaged in the conduct;
- any disability of the person harassed;
- any other relevant circumstance; and
- that the conduct occurs in a workplace or within a working relationship.
How Does Sexual Harassment Law Operate?
Firstly, the law expressly prohibits sexual harassment in the workplace. To support this prohibition, the law also imposes positive duties on businesses to eliminate or minimise the risk of sexual harassment towards workers or other persons at work, as reasonably practicable.
In addition to the general duty, a PCBU has a specific duty to take reasonable and proportionate measures to eliminate sexual harassment as far as possible. When determining whether you complied with this specific duty, the law considers:
- the size, nature and circumstances of the business;
- your resources (financial or otherwise);
- the practicability and the cost of measures to eliminate sexual harassment; and
- any other relevant matter.
Like anti-bullying law, an affected worker can make an application to the Fair Work Commission to seek orders to stop future sexual harassment in a situation where:
- a person has been sexually harassed; and
- there is a risk that the person will continue to be sexually harassed.
What is Sex-Based Harassment?
Sex-based harassment is where someone:
- subjects another person to unwelcome conduct of a demeaning nature; and
- does so because of the person’s sex or a characteristic that is generally imputed to persons of that sex.
Notably, sexual-based harassment occurs in circumstances where a reasonable person would anticipate that the person harassed would have been offended, humiliated or intimidated by the unwelcome conduct. The relevant circumstances include:
- the attributes of the person harassed;
- the relationship between the person harassed and the person who engaged in the conduct;
- any disability of the person harassed;
- any power imbalance between the parties involved;
- the seriousness of the conduct;
- whether the conduct was repeated;
- any other relevant circumstance; and
- that the conduct occurs in a workplace or within a working relationship.
Examples of Sexual Harassment
Some examples of sexual harassment include:
- an employee discussing their sex life;
- actual or attempted sexual assault;
- unwelcome touching or physical contact;
- suggestive comments or jokes;
- intrusive questions or comments about private life or physical appearance;
- being followed or watched;
- excluding a person from training, promotions or opportunities based on their sex, gender or sexuality;
- unwanted invitations to go on dates or socialise outside of work; or
- sharing sexually offensive pictures, including AI-generated deepfakes.
How Does Sexual-Based Harassment Law Operate?
Similar to sexual harassment law, the law prohibits sex-based harassment. Again, there are the same general and specific duties to eliminate or minimise the risk of harm posed by sex-based harassment, as reasonably practicable.
However, unlike sexual harassment law, there is no mechanism for workers to apply to the Fair Work Commission for an order to stop future sex-based harassment.
Managing the Risks of Sexual Harassment at Work
Some ways that you can manage the risk of sexual harassment at work include:
- identifying risk factors for sexual harassment, including risky scenarios (e.g. staff parties, conferences, business trips) or individuals (such as a single female employee in an all-male team);
- regular check-ins with workers regularly and looking for signs that a worker may be uncomfortable or experiencing distress – especially remote workers who may be more easily able to hide symptoms of distress;
- identifying measures to control physical risks in the workplace. For example, surveillance, private changing areas (if required), and providing adequate food and water at events where alcohol will be served;
- providing regular training and policies on acceptable workplace conduct and use of online systems;
- ensuring senior managers and Work, Health & Safety (WHS) officers know when to manage sexual harassment and when to refer to WHS regulators or police;
- creating a culture where regular feedback is welcomed so that workers feel safe to raise concerns about sexual harassment;
- cracking down on cultural issues early (e.g. derogatory comments or inappropriate jokes) so they do not escalate to more serious behaviours; and
- ensuring your communication with third parties such as customers, clients or subcontractors is clear that sexual harassment will not be tolerated.
What If Employers Breach Their Duties?
Both current and former employees can bring a claim which alleges a breach of the general duties under work health and safety law. The employee would essentially be arguing that “as my employer, you let this unwelcome and unreasonable conduct persist and, therefore, you breached your duty to ensure my health and safety at work.”
In some circumstances (which vary from state to state), work health and safety inspectors can also bring a claim on behalf of the regulator. This includes prosecutions against individual officers of the PCBU where it is in the public interest.
Depending on the offence category, a breach can result in:
- disciplinary notices;
- substantial fines (up to $2,085,000); or
- even imprisonment.
Employers should note that, in recent years, courts have awarded much higher compensation orders to employees whose employers have breached their specific duties.
Ultimately, employers should be proactive, invest in tools and training, and investigate complaints seriously. The federal government has published comprehensive guidance about best practice indicators and responding to complaints.
Key Takeaways
Sexual and sex-based harassment is part of a wider scheme of unwelcome and unreasonable conduct at work. Such conduct can adversely impact your workers and your business, lead to a toxic environment, and expose you to legal claims. Nevertheless, an awareness of employer duties and active policies and processes can help prevent and address adverse incidents.
If you have questions about fulfilling your employer duties regarding sexual and sex-based harassment, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Sexual harassment is any unwelcome conduct of a sexual nature made to the person harassed. Whereas sex-based harassment is unwelcome conduct of a demeaning nature because of the person’s sex. In both cases, a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
You should proactively raise the issue and regularly communicate your business’s zero-tolerance policy. You should also implement and enforce a robust Workplace Health and Safety Policy. Likewise, you should also follow formal processes for investigating incidents and taking disciplinary action.
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