Understand how the law explains sexual harassment and how we can help. Use this information when the conduct started on or after 6 March 2023. If the conduct started before this date, see Sexual harassment commencing before 6 March 2023
A person sexually harasses another person if:
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.
The intention of the alleged harasser is not relevant. An advance, request or other conduct may be sexual in nature even if the person engaging in the conduct has no sexual interest in the person towards whom it is directed, or is not aware that they are acting in a sexual way. Conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person.
Part 3-5A of the Fair Work Act applies to sexual harassment ‘in connection with’ work. For example, Part 3-5A applies where a worker is sexually harassed by another worker or by another person when they are working (such as by a customer or client of the person’s employer or principal, a supplier of the employer or business, or a visitor to the worker’s workplace).
In the context of earlier provisions in the Sex Discrimination Act 1984 (describing when sexual harassment was prohibited in employment and employment-like settings), the Federal Court has observed:
Sexual harassment can involve conduct by one or more people and can be a single incident, or repeated conduct/part of a course of conduct.
Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties.
Sexual harassment can include conduct such as:
Sexual harassment can cause physical and psychological harm. It can have a wide range of negative impacts, including feelings of isolation, loss of confidence and stress or depression.
Safe Work Australia has more information.
An application can ask the Commission to deal with a sexual harassment dispute by:
A stop sexual harassment order is intended to prevent any future harassment. The Commission will seek to assist the parties to resolve the issues in dispute, and if the matter is not settled, may determine the application by holding a determinative conference or formal hearing. Where the Commission is satisfied that unlawful sexual harassment has occurred and there is a risk of the person continuing to be sexually harassed by the person or persons, the Commission can make any preventative order considered appropriate (other than the payment of money).
An application for the Commission to otherwise deal with the dispute (other than by arbitration) is intended to remedy past harm caused by sexual harassment. The Commission can seek to assist the parties to resolve the dispute, such as by conciliating, making a recommendation or expressing an opinion. If the matter cannot be settled, the Commission will issue a certificate to this effect. Following this, an aggrieved party (or their industrial association) may seek agreement for the matter to proceed to consent arbitration before the Commission for binding decision, or can choose to bring proceedings in court.
Under Part 3-5A, an employer or principal is vicariously liable for unlawful sexual harassment perpetrated by its employees or agents, if the sexual harassment was done ‘in connection with’ their employment or their duties as agent. This means that an aggrieved person can seek a remedy against an employer or principal in addition to, or instead of, the perpetrator of the sexual harassment.
An employer/principal is not vicariously liable if they prove that they took all reasonable steps to prevent the employee or agent from doing acts that contravene the prohibition on sexual harassment in connection with work. The onus is on the employer/principal to prove that it took all reasonable steps to prevent the sexual harassment.
If you have experienced workplace sexual harassment and bullying, you can make separate applications to the Commission to deal with this. The Commission deals with bullying at work and sexual harassment disputes in different ways.
Find out more about how to stop bullying at work.
[1] Ewin v Vergara (No 3) [2013] FCA 1311 [230] (per Bromberg J).
[2] Ewin v Vergara (No 3) [2013] FCA 1311 [230] (per Bromberg J), citing Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479 (Wilcox J).
[3] See Vergara v Ewin (includes Corrigendum dated 14 November 2014) [2014] FCAFC 100 [83] (per White J in dissent, but not on in relation to this observation).