Sexual Harassment in the Workplace: Your Rights in Australia

What Is Sexual Harassment?

Under the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009, sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would anticipate would offend, humiliate, or intimidate the other person.

It can include:

• Unwanted touching, hugging, or physical contact
• Sexual jokes, comments, or innuendo
• Requests for sexual favours
• Displaying or sending sexually explicit material
• Staring or leering
• Sending sexually suggestive messages, emails, or social media posts

Sexual harassment can happen in person, online, or outside of work (e.g. at a work event or via a work communication platform).

Who Can Be Held Responsible?

The harasser is directly liable. Employers can also be held vicariously liable for sexual harassment by an employee, unless they took all reasonable steps to prevent it.

From March 2023, the positive duty under the Sex Discrimination Act requires employers and others to proactively prevent sexual harassment, not just respond after it occurs.

The "Stop Sexual Harassment" Order

Under the Fair Work Act, a worker can apply to the Fair Work Commission for a stop sexual harassment order (similar to a stop bullying order) to have the behaviour stopped before a formal complaint is resolved.

How to Report It

1. Keep records: note dates, times, what happened, and any witnesses
2. Report internally: to HR, a manager not involved, or a trust-based complaints process
3. Australian Human Rights Commission (AHRC): file a complaint for a conciliated resolution
4. Fair Work Commission: apply for a stop sexual harassment order
5. State anti-discrimination bodies: NCAT (NSW), VEOHRC/VCAT (VIC), QHRC (QLD) etc.

Confidentiality

You can request that your complaint be kept confidential, though employers may have obligations to investigate. The AHRC conciliation process is confidential.

Protections Against Retaliation

It is unlawful to take adverse action against an employee for making a sexual harassment complaint. If you are dismissed, demoted, or treated unfairly for complaining, you may have an additional claim under general protections provisions of the Fair Work Act.