Sexual harassment at work can leave people unsure who to tell or what to do next. Many worry about their job, their reputation or simply not being believed. The law gives workers real protection and several ways to act. Knowing the options early makes it easier to choose the right path.
This article gives general information for workers in Australia. Several laws can apply at once, including federal and state discrimination laws, work health and safety laws and the Fair Work Act 2009 (Cth). Processes and time limits differ between states and between agencies, and they change. Some details below use NSW as the example, drawing on Legal Aid NSW.
What counts as sexual harassment
Legal Aid NSW describes sexual harassment at work as any unwelcome sexual advance, request for sexual favours or behaviour of a sexual nature. It is behaviour that makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate the possibility of that reaction. It can be a single incident or repeated behaviour. It can also happen outside work hours.
Legal Aid NSW gives a long list of examples. Some are obvious and some are easy to brush off. They include:
- unwanted touching, hugging or kissing
- staring or leering
- sexually suggestive comments or jokes
- unwanted invitations on dates or requests for sex
- intrusive questions about your private life or body
- sexually explicit emails or texts
- a hostile workplace environment
The person doing it does not have to be your boss. Harassment can come from colleagues, supervisors and managers. It can also come from customers, clients, visitors or other people in the workplace. Sexual harassment is also a form of unlawful sex discrimination.
What your employer must do
Employers carry duties under more than one law. Under work health and safety laws, an employer must, so far as reasonably practicable, make sure workers are not exposed to risks to their physical or psychological health. That includes risks from sexual harassment. Those risks should be eliminated or, where that is not possible, minimised.
Under sex discrimination laws, including the Sex Discrimination Act 1984 (Cth), employers must take reasonable and proportional steps to prevent sexual harassment. That duty also covers sex discrimination, harassment based on sex and hostile work environments. An employer may be liable if it has not taken enough steps to prevent the conduct. It may also be liable if it does not respond properly once it knows about it.
Workplace culture is set at the top, and directors carry legal duties of their own. Our article on shareholders and the rogue director looks at what can happen when a director acts badly. Smaller companies should also be clear about their formal roles and obligations, which we touch on in whether your company needs a public officer.
Steps you can take inside the workplace
Legal Aid NSW suggests keeping detailed notes of each incident. Write down the date, time, place, the people involved and any witnesses. Keep copies of emails, messages, reports and anything about meetings. You will need these records if you complain to an outside body.
Internal options include talking to the person responsible if you feel safe. You can speak with a manager or HR, report to your union or follow your grievance procedure. A formal written complaint is another option. You do not have to go through internal steps first. You can go straight to an outside body if you feel unsupported, if your manager is responsible or if there is no proper procedure.
You have a right to complain, and you are protected for doing so. Being treated badly because you complained is called victimisation. Legal Aid NSW is clear that this is not acceptable. People who report wrongdoing more broadly have other protections too, as our article on whistleblowing and what you need to know explains.
Taking it to the Fair Work Commission
If you have experienced sexual harassment at work and still work there, you can apply to the Fair Work Commission for an order to stop it. This kind of order looks forward. Its purpose is to prevent future harassment, not to deal with past harm. If someone does not comply with the order, you can complain to the Fair Work Ombudsman.
You can also ask the Commission to deal with your dispute in another way, including through a conciliation conference. Legal Aid NSW notes this option has a time limit, in its guide to taking action against sexual harassment. Because time limits apply, it pays to get legal advice as early as possible. Online legal advice can be a quick way to find out which deadlines apply to you.
The Fair Work Ombudsman’s role
The Fair Work Ombudsman can act where harassment involves a breach of your general protection rights under the Fair Work Act 2009 (Cth). It can investigate breaches and take action against someone who ignores a Commission order. It does not handle work health and safety or unfair dismissal matters. You need to go to the Fair Work Commission before complaining to the Ombudsman.
Discrimination complaints and safety regulators
You can make a discrimination complaint to the Australian Human Rights Commission under federal law. In NSW, Anti-Discrimination NSW handles complaints under state law, and other states have their own bodies. You cannot complain to both the federal and NSW bodies at the same time. Which one suits you depends on your circumstances.
Work health and safety regulators can also step in. In NSW, SafeWork NSW can investigate whether an employer breached its safety duties and can prosecute serious breaches. There is no time limit to make a report. Investigations and prosecutions may have their own time limits, though.
Police, health and income support
Some conduct, such as sexual or physical assault, may be a criminal offence. Contact police straight away if you are in immediate danger. In NSW, police may charge the person or apply for an apprehended violence order. Other states use different names for these orders, as we explain in how a violence restraining order can protect you.
Your GP can give you a medical certificate, treatment or a referral to a psychologist. You can use sick leave or other leave you have built up, following your workplace’s notice and evidence rules. If you suffered a physical or psychological injury, workers compensation may cover lost wages and medical costs. In NSW you should lodge a claim as soon as possible and no later than six months from the injury.
Frequently asked questions
Does harassment by a customer count?
Yes, it can. Sexual harassment can come from customers, clients, visitors and other third parties as well as colleagues. Your employer still has duties to manage that risk.
Do I have to complain internally first?
No. You can go straight to an outside body if you do not feel supported or your manager is involved. Keeping written records will help whichever path you choose.
Is there a time limit?
Yes, most options have time limits, and they differ between agencies and states. In NSW, workers compensation claims should be lodged within six months of the injury. Get legal advice early so you do not miss a deadline.
Can I be punished for complaining?
You are protected when you complain. Being treated badly for complaining is victimisation. Raise it with a lawyer or the agency handling your complaint.
This article is general information only and is not legal advice. Laws, time limits and complaint processes differ between states and territories and change over time. Speak with a qualified lawyer about your own situation.
