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  • Job loss or dismissal
    • Types of dismissal and termination
    • Unfair dismissal
      • About unfair dismissal
        • What is unfair dismissal?
        • Who the law protects from unfair dismissal
        • Check eligibility for unfair dismissal
      • The rules for small business owners
      • The process for unfair dismissal claims
      • Apply for unfair dismissal (Form F2)
        • Check you are ready to apply for unfair dismissal
      • Respond to an unfair dismissal claim
        • What to do when an employee claims unfair dismissal
        • Respond to a claim for unfair dismissal (Form F3)
          • Help with Form F3 – Employer response to unfair dismissal
        • Object to an unfair dismissal claim
          • Object to an application for unfair dismissal remedy (Form F4)
          • Jurisdiction hearings in unfair dismissal cases
      • Conciliation for unfair dismissal
        • What is conciliation?
        • Tips to prepare for conciliation
        • What happens in a conciliation meeting
        • Options at conciliation for unfair dismissal
        • The role of the independent conciliator
        • Ask to delay a conciliation
      • Withdraw your application for unfair dismissal
      • Possible results of unfair dismissal claims
        • Compensation for unfair dismissal
          • The formula to calculate compensation
        • Reinstatement after unfair dismissal
        • Outcomes or remedies at an unfair dismissal hearing
    • Dismissal under general protections
      • About general protections
        • Understand general protections
        • Who the general protections laws cover
          • The difference between contractors and employees
        • Check eligibility for general protections
        • What is adverse action?
        • Prohibited reasons in general protections
        • Other workplace protections
      • The process for general protections dismissal
      • Apply for general protections – dismissal (Form F8)
      • Responding to a general protections claim
        • Response to general protections application (Form F8A)
        • Object to a general protections dismissal claim
      • Conferences for general protections dismissal
        • Tips to prepare for a general protections conference
      • Possible outcomes of a general protections – dismissal case
      • Apply for arbitration of a general protections – dismissal case (Form F8B)
      • Take your general protections case to court
    • Unlawful termination
      • Apply for help with unlawful termination (Form F9)
      • Respond to an application for unlawful termination (Form F9A)
      • Agree to arbitration for unlawful termination (Form F9B)
    • Redundancy
    • Respond to a claim against a business
  • Issues we help with
    • Common issues in the workplace
      • Resolve a dispute in your workplace
      • Apply for help to promote cooperative workplaces and prevent disputes (Form F79)
    • Bullying
      • The process to resolve workplace bullying
      • What is bullying at work?
        • About reasonable management action
      • What to do if you’re bullied at work
        • How we help stop workplace bullying
        • Who can apply to stop bullying
          • Check eligibility for an order to stop bullying
        • Apply to stop workplace bullying (Form F72)
      • Respond to a bullying claim
        • Respond as an employer or principal in a bullying application (Form F73)
        • Respond as a person named in a bullying application (Form F74)
      • Conciliation for bullying at work
        • Prepare for a conciliation session
    • Sexual harassment
      • What is sexual harassment at work
      • Who can apply for orders to stop sexual harassment at work
      • Discrimination, the general protections and work health and safety
      • What to do if you’re sexually harassed at work
      • The Commission’s process to resolve sexual harassment at work
      • Apply to stop sexual harassment at work
      • Respond to an application about sexual harassment at work
      • Conciliation about sexual harassment at work
      • Conferences and hearings about sexual harassment at work
    • Discrimination
    • Help for small business owners
      • What we are doing to help small business
    • Casual to permanent status
      • Apply to resolve a dispute about casual conversion (Form F10A)
    • Dispute about an award or agreement
      • Apply to resolve a dispute about an award or agreement (Form F10)
    • Disputes about general protections
      • Process for general protection disputes
      • Apply for general protections – no dismissal (Form F8C)
      • Responding to a general protections claim not involving dismissal
    • Industrial action
      • Organise a protected action ballot
        • Apply to hold a protected action ballot (Form F34)
        • Apply to extend the 30-day period for protected action (Form F34A)
      • Types of industrial action
      • Payments during industrial action
      • Ballot results
      • Apply to resolve a stand down dispute (Form F13)
      • Apply to stop unprotected industrial action (Form F14)
    • Cooperative Workplaces program
      • Interest-based approaches
      • Interest-based bargaining
      • Interest-based consultation
      • Interest-based problem-solving
    • Jobkeeper disputes
      • Apply to resolve a jobkeeper dispute (Form F13A)
  • Agreements & awards
    • Enterprise agreements
      • Find an enterprise agreement
        • Agreements in progress
      • About enterprise agreements
        • About single and multi-enterprise agreements
        • About greenfields agreements
        • Historical agreements and instruments
        • Statistical reports on enterprise agreements data
      • Make an enterprise agreement
        • The process to make an agreement
        • Before you start bargaining
          • Timeframes to make an agreement
          • Date calculator for single enterprise agreement
          • Plan to communicate your agreement
          • Bargaining representatives
            • Who can be a bargaining representative?
            • The role of representatives
            • Cancel a bargaining representative
          • Apply for a majority support determination (Form F30)
          • Request to bargain for a replacement agreement
        • Start bargaining
          • Scope orders for enterprise agreements
            • Apply for a scope order (Form F31)
          • Resolve a dispute about bargaining
            • Apply to resolve a bargaining dispute (Form F11)
            • Apply for a bargaining order (Form F32)
            • Apply for a serious breach declaration (Form F33)
          • How to bargain in good faith
          • NERR – Notice of Employee Representational Rights
            • Create the NERR
            • Distribute the NERR to employees
        • Develop the agreement
          • Finalise the draft enterprise agreement
          • Guide to the BOOT
            • How we apply the Better Off Overall Test
            • Check an agreement can pass the BOOT
          • Terms and dates to put in an agreement
          • When employees genuinely agree to an agreement
          • Avoid common errors in agreements
            • Meet the terms in the NES
            • Sign an agreement the right way
            • Make sure your NERR is valid
            • Make 'loaded' rates clear
            • Explain what you did in the access period
            • Ways to pass the BOOT
        • Hold a vote on the agreement
          • Explain the agreement to employees
          • What to give employees during the 'access period'
          • Voting process for agreements
          • Record how and when employees vote
        • Create a greenfields enterprise agreement
          • Apply to approve a greenfields agreement (Form F19)
      • Change a single enterprise agreement
        • Apply for approval to change an agreement (Form F23)
        • Employer's declaration to vary an agreement (Form F23A)
        • Union declaration for variation of an enterprise agreement (Form F23B)
        • Apply to vary an agreement to resolve a casual conversion issue (Form F23C)
        • Apply to terminate an agreement after the nominal expiry date (Form F24B)
      • Approval of enterprise agreements
        • The process to approve an agreement
        • Requirements an agreement must meet
        • About undertakings in agreements
          • How to write an undertaking
        • Approval timelines for agreements
        • Is your agreement application ready to lodge?
        • Forms for approval of agreements
          • Apply to approve a new enterprise agreement (Form F16)
          • Employer declaration for an enterprise agreement (Form F17)
          • Union declaration for an enterprise agreement (Form F18)
          • Employee rep declaration for an agreement (Form F18A)
          • Employer's declaration for a greenfields agreement under s.182(3) (Form F20)
          • Union declaration for a greenfields agreement (Form F21)
          • Apply to approve a new greenfields agreement made under s.182(4) (Form F21A)
          • Employer's declaration for a greenfields agreement under s.182(4) (Form F21B)
          • Union declaration for approval for a greenfields agreement under s.182(4) (Form F21C)
      • Terminate an enterprise agreement
        • Apply to terminate an enterprise agreement by agreement (Form F24)
        • Ways to terminate an individual agreement (IABTI)
        • Declaration to support the termination of an agreement (Form F24A)
        • Declaration to support the termination of an agreement after nominal expiry (Form F24C)
        • Declaration in response to application to terminate an agreement after the expiry date (Form F24D)
      • Sunsetting of zombie agreements
        • What to do if I have a zombie agreement
        • What will happen to my zombie agreement
        • Extending a zombie agreement
    • Awards
      • Find an award
      • Create or change an award
        • Applications to create or change an award
        • Apply to create, change or revoke an award (Form F46)
      • Modern awards pay database
        • Data dictionary
      • What awards contain
      • The difference between awards and agreements
      • Awards research
    • Minimum wages and conditions
      • The national minimum wage
        • National minimum wage orders
      • National Employment Standards
      • Where to find your pay and conditions
      • Superannuation
  • Hearings & decisions
    • Hearings schedule
      • Adelaide hearings
      • Brisbane hearings
      • Canberra hearings
      • Darwin hearings
      • Hobart hearings
      • Melbourne hearings
      • Perth hearings
      • Sydney hearings
      • Regional hearings
    • How the Commission works
      • What to do when we set your tribunal date
      • About conferences and hearings
      • Prepare for a conference or hearing
      • Possible outcomes of a hearing or conference
      • What happens during a hearing
        • Inside the hearing room
      • On the day of your conference or hearing
      • Recording a hearing or conference
      • Ask to delay a hearing or conference
    • Appeal a decision or order
      • The appeals process
        • Reasons you may appeal a decision or order
        • Who can appeal a decision?
        • How to appeal a decision
        • Order to ‘stay’ all or part of a decision
        • Create an appeal book
      • Prepare for an appeal hearing
        • Prepare an outline of submissions for an appeal
        • What happens in an appeal hearing
        • Who sits on an Appeal Bench?
      • Timetable of appeal hearings
      • Results of appeals
      • Apply for permission to appeal (Form F7)
    • Decisions and orders
      • National wage and safety net review decisions
      • Significant decisions and summaries
    • Major cases
      • 4 yearly review
        • All decisions and statements
        • Alleged NES inconsistencies
        • Awards under review
        • Common issues
          • Abandonment of employment
          • Annual leave
          • Annualised salaries
          • Apprentice conditions
          • Award flexibility
          • Blood donor leave
          • Casual employment
          • Family and domestic violence leave
          • Family friendly work arrangements
          • Micro business schedule
          • National Training Wage
          • Overtime for casuals
          • Part-time employment
          • Payment of wages
          • Penalty rates case
            • Decisions & statements
            • General Retail Industry Award
            • Hair and Beauty Industry Award
          • Public holidays
          • Transitional provisions
        • Final stage proceedings
        • Plain language re-drafting
          • Fast Food Industry Award
          • Hair and Beauty Industry Award
        • Timetable
      • Annual wage reviews
        • Annual Wage Review 2022–23
          • Research for the Annual Wage Review 2022–23
          • Timetable for the Annual Wage Review 2022–23
        • Annual Wage Review 2021–22
          • Additional material for the Annual Wage Review 2021–22
          • Correspondence for the Annual Wage Review 2021–22
          • Decisions & statements for the Annual Wage Review 2021–22
          • Determinations for the Annual Wage Review 2021–22
          • Draft determinations for the Annual Wage Review 2021–22
          • National Minimum Wage Order 2022
          • Notices of listing for the Annual Wage Review 2021–22
          • Research for the Annual Wage Review 2021–22
          • Statistical reporting for the Annual Wage Review 2021–22
          • Submissions for the Annual Wage Review 2021–22
          • Timetable for the Annual Wage Review 2021–22
          • Transcripts for the Annual Wage Review 2021–22
        • Annual Wage Review 2020–21
          • Additional material for the Annual Wage Review 2020–21
          • Consultations for the Annual Wage Review 2020–21
          • Correspondence for the Annual Wage Review 2020–21
          • Decisions & statements for the Annual Wage Review 2020–21
          • Determinations for the Annual Wage Review 2020–21
          • Draft determinations for the Annual Wage Review 2020–21
          • National Minimum Wage Order 2021
          • Notices of listing for the Annual Wage Review 2020–21
          • Research for the Annual Wage Review 2020–21
          • Statistical reporting for the Annual Wage Review 2020–21
          • Submissions for the Annual Wage Review 2020–21
            • Initial submissions for the Annual Wage Review 2020–21
            • Post-budget submissions for the Annual Wage Review 2020–21
            • Submissions in reply for the Annual Wage Review 2020–21
            • Supplementary submissions for the Annual Wage Review 2020–21
          • Timetable for the Annual Wage Review 2020–21
          • Transcripts for the Annual Wage Review 2020–21
        • Annual Wage Review 2019–20
          • Additional material for the Annual Wage Review 2019-20
          • Consultations for the Annual Wage Review 2019-20
          • Correspondence for the Annual Wage Review 2019-20
          • Decisions & statements for the Annual Wage Review 2019-20
          • Determinations for the Annual Wage Review 2019-20
          • Junior & apprentice rates in modern awards for the Annual Wage Review 2019-20
          • National Minimum Wage Order 2020
          • Notices of listing for the Annual Wage Review 2019-20
          • Research for the Annual Wage Review 2019-20
          • Research proposals for the Annual Wage Review 2019-20
          • Statistical reporting for the Annual Wage Review 2019-20
          • Submissions for the Annual Wage Review 2019-20
            • Initial submissions for the Annual Wage Review 2019-20
            • Submissions in reply for the Annual Wage Review 2019-20
            • Supplementary submissions for the Annual Wage Review 2019-20
          • Timetable for the Annual Wage Review 2019-20
          • Transcripts for the Annual Wage Review 2019-20
        • Annual Wage Review 2018–19
          • Additional material for the Annual Wage Review 2018-19
          • Consultations for the Annual Wage Review 2018-19
          • Correspondence for the Annual Wage Review 2018-19
          • Decisions & statements for the Annual Wage Review 2018-19
          • Determinations for the Annual Wage Review 2018-19
          • National Minimum Wage Order 2019
          • Notices of listing for the Annual Wage Review 2018-19
          • Research for the Annual Wage Review 2018-19
          • Statistical reporting for the Annual Wage Review 2018-19
          • Submissions for the Annual Wage Review 2018-19
            • Initial submissions for the Annual Wage Review 2018-19
            • Submissions in reply for the Annual Wage Review 2018-19
          • Timetable for the Annual Wage Review 2018-19
          • Transcripts for the Annual Wage Review 2018-19
        • Annual wage reviews archive
          • Annual Wage Review 2012–13
      • Application to terminate the Apple Retail Enterprise Agreement 2014
      • Award flexibility – Hospitality and retail sectors
        • Application to vary the Hospitality Award
        • Application to vary the Restaurant Award
        • Application to vary the Retail Award
        • Background material
        • Correspondence
        • Decisions and statements
        • Notices of listing and directions
        • Research and data
        • Submissions
        • Transcript
      • Ballot for withdrawal of ME Division from CFMMEU
      • Ballot for withdrawal of Manufacturing Division from CFMMEU
      • Family and domestic violence leave review
        • Decisions & statements
      • Proposed On Demand Delivery Services Award (Menulog)
      • Review of certain C14 rates in modern awards
      • Superannuation fund reviews
      • Svitzer Australia Pty Limited industrial action
      • Work value case – Aged Care Industry
        • Correspondence
        • Decisions & statements
        • Notices of listing & directions
        • Research and information
        • Submissions
        • Transcript
      • Previous major cases
        • Application to terminate the IPCA (VIC, ACT & NT) Agreement 2011
        • Ballot for withdrawal of ME Division from CFMMEU
        • Casual terms award review 2021
          • Background material
          • Correspondence
          • Decisions & statements
          • Determinations
          • Notices of listing & directions
          • Submissions
          • Transcripts
          • All documents
        • Clerks – Private Sector Award – Work from home case
        • Equal Remuneration Case 2010-12
          • Applications
          • Correspondence
          • Decisions & statements
          • Draft orders
          • Exhibits
          • Notices of listing
          • Site Inspections
          • Submissions
          • Timetable
          • Transcripts
        • Equal Remuneration and Work Value Case
          • Applications
          • Correspondence
          • Decisions and statements
          • Legislation
          • Notices of listing and directions
          • Orders
          • Papers
          • Submissions
          • Timetable
          • Transcript
        • Health sector awards – pandemic leave case
          • Applications
          • Correspondence
          • Decisions and statements
          • Determinations
          • Information notes and articles
          • Notices of listing and directions
          • Orders
          • Submissions and witness statements
          • Transcript
        • Modern awards review 2012
          • Awards reviewed 2012
        • Undergraduate qualifications review
    • Case law benchbooks
      • Anti-bullying benchbook
        • Overview of benchbook
        • What is workplace bullying?
        • Who is covered?
          • Definition of ‘worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking?
            • What is a Territory or a Commonwealth place?
            • What is a constitutional corporation?
            • What is the Commonwealth?
        • When is a worker bullied at work?
          • What does ‘at work’ mean?
          • Risk of continued bullying
          • What does ‘Reasonable management action’ mean?
        • Making an application
        • Responding to an application
        • What if the worker has been dismissed etc
        • Commission processes
          • Procedural issues
          • Representation by lawyers and paid agents
        • Evidence
        • What are the outcomes?
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
          • Appeals
          • Role of the Court
      • Enterprise agreements benchbook
        • Overview of benchbook
        • What is an enterprise agreement?
          • Single-enterprise agreement
          • Multi-enterprise agreement
          • Differences between single and multi-enterprise agreements
          • Greenfields agreement
        • Content of an enterprise agreement
          • Permitted matters
          • Coverage
          • Scope – who will be covered?
          • Terms & conditions of employment
          • Base rate of pay
          • Nominal expiry date
          • Mandatory terms
          • Flexibility term
          • Consultation term
          • Dispute settlement term
          • Optional terms
          • Terms that cannot be included
            • Terms that exclude the NES
            • Unlawful terms
            • Designated outworker terms
        • Agreement making process
          • Representation
          • Employees must be notified of their right to be represented
          • Bargaining representatives
        • Bargaining
          • Good faith bargaining
          • How long does bargaining take?
        • Voting
          • Voting process
          • Who can vote?
          • Timeframe for vote
          • Voting methods
          • When is an agreement made?
        • What happens if the parties cannot agree?
        • Making an application
          • Common defects & issues
            • National Employment Standards – common defects & issues
            • Better off overall test – common defects & issues
            • Mandatory terms – common defects & issues
            • Other terms of the agreement
            • Pre-approval requirements – common issues
            • Forms & lodgment – common defects & issues
          • Who must apply
          • Timeframe to apply – within 14 days
          • Material to accompany application
          • Signing an agreement
          • Employer must notify employees
        • Commission approval process
          • Genuine agreement
            • Minor procedural or technical errors
          • Where a scope order is in operation
          • Particular kinds of employees
          • Better off overall test (BOOT)
            • When an agreement passes
            • Classes of employees
            • Which award applies
            • Advice about coverage
            • Loaded rates of pay
          • Public interest test
          • Undertakings
          • Powers of the Commission
        • Associated applications
          • Majority support determinations
          • Authorisations to commence bargaining
            • Single interest employer authorisations
            • Ministerial declaration
            • Low-paid authorisations
          • Scope orders
          • Bargaining orders
          • Serious breach declarations
          • Disputes
          • Workplace determinations
            • Low-paid workplace determinations
            • Industrial action related workplace determinations
            • Bargaining related workplace determinations
          • Role of the Court
          • Appeals
          • Varying enterprise agreements
            • Varying by agreement
            • Ambiguity or uncertainty
            • Casual employee definition and casual conversion provisions
            • Discrimination
          • Terminating enterprise agreements
            • Terminating by agreement
            • After its nominal expiry date
          • Terminating individual agreements
      • General protections benchbook
        • Overview of benchbook
          • When is a person covered by the general protections?
        • What are the general protections?
        • How do the general protections work?
          • Rebuttable presumption as to reason or intent
        • Coverage for general protections
          • What is a constitutionally-covered entity?
          • What is a Territory or a Commonwealth place?
          • What is a trade and commerce employer?
          • What is a Territory employer?
          • What is a national system employer?
        • What if I am not covered by the general protections?
        • What is adverse action?
          • What is dismissal?
          • What is ‘injuring’ the employee in his or her employment?
          • What is altering the position of the employee to the employee’s prejudice?
          • What is discriminating between the employee and other employees of the employer?
          • Threatened action and organisation of action
          • Exclusions
        • Workplace rights – Division 3
          • Meaning of workplace right
          • Coercion
          • Undue influence or pressure
          • Misrepresentations
          • Requiring the use of COVIDSafe
        • Industrial activities – Division 4
          • What are industrial activities?
          • Coercion
          • Misrepresentations
          • Inducements – membership action
        • Other protections – Division 5
          • Discrimination
            • Race
            • Colour
            • Gender identity & sexual orientation
            • Age
            • Physical or mental disability
            • Marital status
            • Family or carer’s responsibilities
            • Pregnancy
            • Religion
            • Political opinion
            • National extraction
            • Social origin
          • Exceptions
          • Temporary absence – illness or injury
          • Bargaining services fees
          • Coverage by particular instruments
          • Coercion – allocation of duties to particular person
        • Sham arrangements – Division 6
          • Misrepresenting employment
          • Dismissing to engage as independent contractor
          • Misrepresentation to engage as independent contractor
        • Making an application
          • Dismissal applications
            • Timeframe for lodgment
            • Late lodgment
          • Non-dismissal applications
          • Other types of applications
            • Multiple actions relating to dismissal
            • Unfair dismissal
            • Unlawful termination
            • Court application (interim injunction)
            • Discrimination
        • Power to dismiss applications
        • Evidence
        • Commission process
          • Conferences & hearings
          • Dealing with different types of general protections disputes
          • Rescheduling or adjourning matters
          • Representation by lawyers and paid agents
          • Bias
        • Outcomes
        • Costs
          • When are costs ordered by the Commission?
          • Costs against representatives
        • Appeals
        • Role of the Court
          • Enforcement of Commission orders
          • Types of order made by the Court
      • Industrial action benchbook
        • What is industrial action?
          • Unprotected industrial action
            • Orders to stop or prevent unprotected industrial action
          • Protected industrial action
            • Immunity
            • Common requirements
            • Employee claim action
            • Employer response action
            • Employee response action
            • Pattern bargaining
        • Taking protected industrial action
          • Protected action ballots
            • Who may apply?
            • Making an application
            • Commission process
            • Varying a protected action ballot order
            • Revoking a protected action ballot order
          • Voting
            • Ballot agents
            • Who may vote – roll of voters
            • Ballot papers
            • Voting procedure
            • Scrutiny of the ballot
            • Results of the ballot
            • When is industrial action authorised?
          • Notice requirements
          • Commencing protected industrial action
        • Payments relating to industrial action
          • Partial work bans
          • Unprotected industrial action – payments
          • Standing down employees
        • Suspension or termination of protected industrial action
          • Powers of the Commission
            • When the Commission may suspend or terminate
            • When the Commission must suspend or terminate
              • Threats to persons or the economy
              • Suspending industrial action
            • Requirements relating to a period of suspension
          • Powers of the Minister
        • Enforcement
        • Appeals
      • Sexual harassment benchbook
        • Overview of benchbook
        • What is sexual harassment?
        • Who is covered by the laws to stop sexual harassment at work?
          • Definition of ‘Worker’
          • Definition of ‘constitutionally-covered business’
            • What is a person conducting a business or undertaking (PCBU)?
              • What is a Commonwealth authority?
              • What is a Territory or a Commonwealth place?
              • What is a body corporate incorporated in a Territory?
              • What is the Commonwealth?
        • When is a worker sexually harassed at work?
          • What does ‘at work’ mean?
          • Reasonable belief of bullying or sexual harassment at work
        • Risk of continued sexual harassment
          • Absence of future risk of sexual harassment
          • Change in circumstances
          • Other options for workers who are no longer working for the employer/principal
        • Making an application
          • Responding to an application
        • Commission process – Hearings and conferences
          • Powers of the Commission
          • Procedural issues
          • Representation by lawyers and paid agents
            • Notification of ‘acting for’ a person
            • What is representation?
            • When will permission be granted?
            • Exception – Conference by staff conciliator
            • Representation – Not in a conference or hearing
          • Bias
          • Rescheduling or adjourning matters
        • Evidence
          • Privilege against self-incrimination
        • What are the outcomes?
          • Conciliated outcomes
          • Orders to stop bullying or sexual harassment (or both) at work
          • Considerations
          • When can the Commission dismiss an application?
          • Contravening an order of the Commission
        • Associated applications
          • Costs
            • What are costs?
            • Applying for costs
            • When are costs ordered?
          • Appeals
          • Role of the Court
      • Unfair dismissals benchbook
        • Overview of unfair dismissal
        • Coverage for unfair dismissal
          • Who is protected from unfair dismissal?
          • People excluded from national unfair dismissal laws
            • Independent contractors
            • Labour hire workers
            • Vocational placements & volunteers
            • Public sector employment
          • Constitutional corporations
          • High income threshold
          • Modern award coverage
          • Application of an enterprise agreement
          • What is the minimum period of employment?
            • How do you calculate the minimum period of employment?
            • What is continuous service?
            • What is an excluded period?
          • Bankruptcy
          • Insolvency
        • What is dismissal?
          • When does a dismissal take effect?
          • Terminated at the employer's initiative
          • Forced resignation
          • Demotion
          • Contract for a specified period of time
          • Contract for a specified task
          • Contract for a specified season
          • Training arrangement
          • What is a transfer of employment?
          • Periods of service as a casual employee
          • What is a genuine redundancy?
            • Job no longer required due to changes in operational requirements
            • Consultation obligations
            • Redeployment
          • What is the Small Business Fair Dismissal Code?
        • What makes a dismissal unfair?
          • Valid reason relating to capacity or conduct
            • Capacity
            • Conduct
          • Notification of reason for dismissal
          • Opportunity to respond
          • Unreasonable refusal of a support person
          • Warnings – unsatisfactory performance
          • Size of employer's enterprise & human resources specialists
          • Other relevant matters
        • Making an application
          • Application fee
          • Timeframe for lodgment
          • Extension of time for lodging an application
          • Who is the employer?
          • Multiple actions
          • Discontinuing an application
        • Objecting to an application
        • Commission process – conciliations, hearings and conferences
          • Conciliation
          • Hearings and conferences
          • Preparing for hearings and conferences
          • Representation by lawyers and paid agents
          • Rescheduling or adjourning matters
          • Bias
        • Remedies
          • Reinstatement
            • Order for reinstatement cannot be subject to conditions
            • Order to maintain continuity
            • Order to restore lost pay
          • Compensation
            • Calculating compensation
            • Instalments
            • Mitigation
            • Remuneration
            • Any other matters that the Commission considers relevant
            • Compensation cap
        • Dismissing an application
        • Evidence
        • Costs
          • Costs against representatives
          • Security for costs
        • Appeals
          • Staying decisions
        • Role of the Court
      • JobKeeper disputes benchbook
        • Introduction
          • Overview of the Coronavirus Economic Response provisions in the Fair Work Act
        • JobKeeper enabling directions – general information
          • Service & entitlement accrual while a JobKeeper enabling direction applies
          • When a JobKeeper enabling direction will have no effect
          • Stand downs that are not jobkeeper enabling stand downs
          • Employee requests for secondary employment, training and professional development during a jobkeeper enabling stand down
        • JobKeeper enabling stand down directions – employers currently entitled to jobkeeper payments
          • Directions about duties & location of work
        • Jobkeeper enabling directions – employers previously entitled to jobkeeper payments
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Main navigation

Sexual harassment benchbook

When is a worker sexually harassed at work?

Introduction

See Fair Work Act s.789FD

On this page:

  • A sexual advance, a request for sexual favours or conduct of a sexual nature
  • Unwelcome conduct
  • Reasonable person test
  • Single incidents
  • Sexual harassment – Case examples
  • Case examples
Content

A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.

‘Sexually harass’ has the same meaning given by s.28A of the Sex Discrimination Act[66]. Section 28A provides that a person sexually harasses another person if:

  • they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;

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 legal test for sexual harassment requires that the conduct must be:

  1. either a sexual advance or a request for sexual favours to the person harassed or other conduct of a sexual nature in relation to the person harassed
  2. unwelcome
  3. such that a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person who was harassed would be offended, humiliated and/or intimidated.

Each of these elements will be examined further below.

The person who engages in sexual harassment need not be a worker and could (for example) be a customer or client of the employer or principal, a supplier of the employer or business or a visitor to the place of work of the worker.

A sexual advance, a request for sexual favours or conduct of a sexual nature

Whether there has been a sexual advance, a request for sexual favours directed to the person harassed or other conduct of a sexual nature in relation to the person harassed is a question of fact.[67]

‘Conduct of a sexual nature’ in s.28A of the Sex Discrimination Act has been interpreted broadly.  It includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.[68]

It is clear that the concept ‘other conduct of a sexual nature in relation to the person harassed’ is wider than conduct specifically directed at the applicant, given it includes making a statement of a sexual nature in the presence of a person. However, this expression is not so broad as to encompass all unwelcome conduct of a sexual nature in relation to persons other than the applicant. The conduct must be shown to be, in some way, connected to the applicant. The question of whether particular conduct of a sexual nature is in relation to an applicant will depend on the circumstances, which may include whether a hostile or demeaning atmosphere has become a feature of the workplace environment.[69] In other contexts, conduct has been held to be ‘in relation to’ a person if there is a real connection to the person, rather than one that is insignificant, or remote and merely incidental.[70]

Examples of conduct of which may constitute a sexual advance, a request for sexual favours or other conduct of a sexual nature include:

  • sexually suggestive comments or jokes;
  • intrusive questions about private life or physical appearance;
  • unwanted invitations to go on dates, or requests or pressure for sex;
  • unwanted written declarations of love;
  • sending sexually explicit or suggestive pictures or gifts to a worker, or displaying sexually explicit or suggestive pictures, posters, screensavers or objects in the work environment;
  • intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, or following, watching or loitering;
  • inappropriate physical contact, such as deliberately brushing up against a person, or unwelcome touching, hugging, cornering or kissing; 
  • behaviours that may be offences under criminal laws, such as actual or attempted rape or sexual assault, indecent exposure or stalking;
  • sexually explicit or suggestive emails, SMS or social media (including the use of emojis with sexual connotations), indecent phone calls, circulating pornography or other sexually graphic imagery, unwelcome sexual advances online, or sharing or threatening to share intimate images or film without consent.[71]

The intention of the alleged harasser is not relevant.[72] 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,[73] or is not aware that they are acting in a sexual way. [74] Sexual harassment is unlawful regardless of the sex, sexual orientation or gender identity of the parties.[75]

Some conduct, which may not amount to sexual harassment on its own, may fall within the definition if it forms part of a broader pattern of inappropriate sexual conduct. For example, the flicking of elastic bands at a person has been found to be conduct of a sexual nature in the context of a broader pattern of sexual conduct.[76]

Unwelcome conduct

The advance, request or other conduct must be both of a sexual nature and unwelcome to be sexual harassment.

The question of whether an identified form of conduct is unwelcome is a subjective one. It turns only on the attitude of the recipient of that conduct.[77]  The intention of the person responsible for the conduct is not relevant.

Unwelcome conduct has been described as being:

  • conduct that is not solicited or invited, which the recipient regards as undesirable or offensive[78];
  • conduct that is disagreeable to the person to whom it is directed.[79]

To find that conduct is unwelcome, it is not necessary for the person experiencing sexual harassment to have explicitly addressed the behaviour or informed their harasser that their conduct is unwelcome.[81] There are many reasons why a person who has been sexually harassed may not tell their harasser that the conduct is unwelcome. These reasons include a power imbalance, youth and inexperience and fear of reprisals

Reasonable person test

The final element of the test for sexual harassment is that a reasonable person in the circumstances, having regard to those circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The ‘reasonable person’ is assumed to have some knowledge of the personal qualities of the person harassed[81]. Section 28A(1A) of the Sex Discrimination Act requires that the circumstances to be taken into account include:

  • the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
  • the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
  • any disability of the person harassed;
  • any other relevant circumstance.

The reasonable person test is an objective test[82].  It is not concerned with the motives or reasons of the person who engaged in the sexual harassment, or what they actually anticipated. Excuses such as ‘it was joke’, ‘I didn’t mean anything by it’, ‘it was harmless fun’, or ‘it was done while under the influence of alcohol’, are misplaced.[83]

Single incidents

A single incident can constitute sexual harassment[84]. This is different to the Commission’s jurisdiction to deal with bullying, which can only be accessed where the bullying behaviour is repeated[85].  Whether a single incident will constitute sexual harassment depends on the ‘nature or quality of the action or statement.’[86]

Sexual harassment – Case examples

Note:  Sexual harassment can take many forms, including allegations against a number of parties; serious criminal offences; and complaints of both sexual harassment and other bullying behaviours.

The following examples include cases about sexual harassment in other legal contexts; primarily under state and federal discrimination laws. Unlike these cases, an award of damages is not available in the Commission, as the Fair Work Act does not allow the Commission to order payment of compensation if it makes a finding of sexual harassment.

WHS regulators can also assess and investigate complaints of workplace sexual harassment in accordance with their individual compliance and prosecution policies, which may take into account issues such as the immediate risk to health and safety, possible breaches of WHS legislation, evidence, likelihood of success and whether prosecution would be in the public interest. Jurisdictions that use alternative dispute resolution practices may not keep or publish records of the outcomes in these matters.

It is not necessary for a worker to establish a risk to health and safety when seeking an order to stop sexual harassment, as sexual harassment is a known and accepted WHS risk.   Sexual harassment at work can cause various physical illnesses and psychological harm, such as stress, depression, anxiety and post-traumatic stress disorder.

Case examples

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct – reasonable person

Hill v Hughes trading as Beesley and Hughes Lawyers [2019] FCCA 1267 (24 May 2019); Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020).

Facts

Ms Beesley worked as a paralegal in a small law firm run by Mr Hughes, a solicitor.  Shortly after Ms Beesley commenced work at the law firm, Mr Hughes began a course of conduct including:

• sending Ms Beesley persistent, amorous emails;

• during a trip for work, attending Ms Beesley’s bedroom uninvited and inappropriately clothed, refusing to leave until she gave him a hug; and

• on a number of occasions, preventing Ms Beesley from leaving her office until she gave Mr Hughes a hug.

Ms Beesley rejected each of these advances and asked Mr Hughes to stop. When the conduct continued, Ms Beesley resigned.

At trial, Mr Hughes argued that his conduct was not sexual harassment because he was attempting to pursue a romantic relationship. The trial judge found that such a distinction ‘reflects a social myopia’ that is not reflected in the Sex Discrimination Act. The trial judge found that Mr Hughes’ conduct was ‘outrageous’ and constituted sexual harassment.

Outcome

An appeal from Mr Hughes was dismissed.

The Full Court of the Federal Court (the Full Court) held that the question of whether there has been any of the 3 identified forms of conduct – a sexual advance, a request for sexual favours or other conduct of a sexual nature – is a question for the Court, and it is a question of fact.

It held that the test of whether conduct is ‘unwelcome’ is subjective and turns solely on the attitude of the person alleging the harassment.

By contrast, the reasonable person test is an objective one, to be assessed against the broadly defined circumstances in s.28A(1A) of the Sex Discrimination Act. In this case, the profound power imbalance between Mr Hughes and Ms Beesley was important, as was Mr Hughes’ awareness of Ms Beesley’s anxiety disorder.

Relevance

Whether an advance, request or conduct is sexual in nature is a question of fact.

Whether an advance, request or conduct is ‘unwelcome’ is assessed subjectively, and turns on the attitude of the person experiencing the conduct only.

Whether a reasonable person would anticipate the possibility that the recipient of the advance, request or conduct would be offended, humiliated or intimidated is assessed objectively.

Sexual harassment ¬ conduct of a sexual nature – reasonable person

Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 (19 July 2021)

Facts

The New South Wales Civil and Administrative Tribunal (the Tribunal) determined that both Sydney Water Corporation (Sydney Water) and Vitality Works Australia Pty Ltd (Vitality Works) had engaged in sexual harassment by displaying a poster at the Sydney Water Ryde depot.

Sydney Water is a male-dominated workplace and the poster was placed just outside the men’s toilet and the lunchroom.  The poster showed a photograph of a female Sydney Water employee under the caption ‘Feel great – lubricate!’ The employee had agreed to have her photograph taken for a WHS campaign but had not been informed that those words would be used above her image.

The Tribunal found that the poster conveyed the sexual connotation that the employee ‘with her smiling face, feels great because she applies lubricant to her body, including her sexual organs which gives her sexual pleasure’ and that she ‘advocates that others should do the same’.

Outcome

On appeal, the NSW Court of Appeal (the Court) held that whether conduct is ‘conduct of a sexual nature’ is a question of fact. The phrase ‘conduct of a sexual nature’ has a broad meaning and includes sexually suggestive ‘jokes’ and comments as well as innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod - all of these are capable of being deployed to sexualise conduct.  The subjective intention of the alleged perpetrator to engage (or not engage) in ‘conduct of a sexual nature’ is not an element of sexual harassment.

The Court held that conduct of a sexual nature is not confined to conduct that is sexually explicit.  This would overlook the statutory language and the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the phrase ‘conduct of a sexual nature’ is properly construed with an understanding of those matters.

The Court found that design, publication, display and distribution of the poster was plainly conduct of a sexual nature, which held up the employee to sexual ridicule in her workplace. The fact that other clients of Vitality Works had not made adverse comments about the slogan ‘Feel great – lubricate’ in the past was not relevant to its determination that a reasonable person would have anticipated that the employee would be offended, humiliated or intimidated by the conduct, which is an objective test.

Relevance

The phrase ‘conduct of a sexual nature’ is of broad import, and should not be narrowly construed. It is clear that a single act or single incident may constitute sexual harassment.

Conduct which is not intended to be sexual harassment may amount to sexual harassment – there is no legal requirement that the perpetrator of sexual harassment intend to sexually harass the victim.

Sexual harassment ¬ conduct of a sexual nature

Richardson v Oracle Corporation Australia Pty Limited [2013] FCA 102 (20 February 2013); Richardson v Oracle Corporation Australia Pty Ltd and Another [2014] FCAFC 82 (15 July 2014)

Facts

Ms Richardson was employed in the Sydney office of Oracle Corporation Australia Pty Ltd (Oracle).  Mr Tucker was employed at Oracle’s Melbourne office.  Ms Richardson and Mr Tucker were part of a team putting together a bid for work.

Ms Richardson alleged that she was sexually harassed by Mr Tucker in the period from late April 2008 until 12 November 2008 during their work together as part of the bid team. The conduct included inappropriate sexual advances and subjecting Ms Richardson to a humiliating series of comments such as: ‘Gosh, Rebecca, you and I fight so much, I think we must have been married in our last life’, and ‘So, Rebecca, how do you think our marriage was? I bet the sex was hot’.

Ms Richardson complained to her manager, who referred the matter to HR. An investigation was conducted. In the meantime, Ms Richardson was required to continue working with Mr Tucker and had regular contact with him via conference calls and emails. The HR investigation supported much of Ms Richardson’s complaint. Mr Tucker was given a first and final warning and retained his role. Ms Richardson resigned in March 2009.

Mr Tucker denied some of the alleged conduct and explained the rest as trying to diffuse a tense situation with jokes, making innocuous or commonplace comments or engaging in ‘blue banter’ that fell short of sexual harassment when seen in context.

Outcome

The Federal Court rejected ‘Mr Tucker’s denials and attempts to defend his conduct as unintended, misunderstood or innocuous.’ The Court found that Mr Tucker had embarked on a systematic course of conduct that was fairly described as sexual harassment within its statutory meaning. Some of the individual remarks and suggestions constituted sexual harassment in their own right.  Overall, the whole course of conduct constituted sexual harassment.

Oracle was found vicariously liable for Mr Tucker’s conduct.  In its decision, the Federal Court noted that Ms Richardson was very distressed by Mr Tucker’s conduct, which manifested in her suffering forms of physical and mental impairment, including an adjustment disorder.

Relevance

Jokes or ‘banter’ may constitute conduct of a sexual nature.

A perpetrator’s intentions are irrelevant to the assessment of whether conduct is of a sexual nature.

The finder of fact may look to a course of conduct as a whole, which may include instances of sexual conduct as well as other conduct, in order to determine whether the conduct complained of constituted sexual harassment.

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct

Collins v Smith (Human Rights) [2015] VCAT 1029 (10 July 2015)

Facts

Ms Collins commenced working at a local post office in May 2011. Mr Smith was the owner and manager of the post office, in partnership with his wife. Up until 5 January 2013, Ms Collins said she enjoyed her job and got along well with Mr Smith, whom she regarded as ‘like a father figure’.

However, after that time, Ms Collins detailed persistent and unwelcome conduct of a sexual nature by Mr Smith in the course of her employment, from January to April 2013. Mr Smith either denied that the conduct occurred or, where it was admitted, denied that it was unwelcome.

Outcome

The Victorian Civil and Administrative Tribunal (the Tribunal) upheld Ms Collins’ complaints of sexual harassment.  As there were no other witnesses to the events and only limited corroborative evidence, the Tribunal’s assessment of the credibility of each party’s account was crucial to its findings.

The Tribunal accepted Ms Collins’ evidence of the numerous incidents of sexual harassment[88], which included physical contact (such as attempting to kiss Ms Collins and touching her on her bottom and breasts); verbal comments, including propositioning for sex and threatening comments, and written communications including a St Valentine card, notes and text messages.

The Tribunal rejected Mr Smith’s evidence depicting Ms Collins as the principal protagonist who welcomed his continuing flattery and jocular behaviour. It preferred Ms Collins’ evidence that she consistently rejected Mr Smiths’ advances and reiterated to him her desire to maintain a friendly but professional relationship. The Tribunal accepted that Ms Collins was attempting to effectively ‘manage’ Mr Smith in view of her desire to maintain her employment, and Mr Smith’s behaviour created an intolerable situation for her in which to perform her work. The medical evidence showed a clear nexus between the sexual harassment and Ms Collins’ consequent psychological trauma, comprising chronic post-traumatic stress disorder and a depressive disorder.

Relevance

A finding of sexual harassment may be based on the fact finder’s assessment of the relative credibility of each party’s accounts, particularly in circumstances where there is limited corroborating evidence.

A worker does not welcome conduct simply by enduring it and taking steps to placate the harasser in order to maintain employment.

Sexual harassment ¬ conduct of a sexual nature – unwelcome conduct - reasonable person

Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty [2017] NSWCATAD 156 (25 May 2017)

Facts

Mr Kordas was employed as an apprentice hairdresser by Aztec Hair and Beauty for about 3 months. He alleged that he was sexually harassed during his employment by his manager, Mr Rony, and his colleague and trainer, Mr Eaton. The alleged sexual harassment included Mr Rony stroking Mr Kordas’ palm when he gave him money to make a purchase, and the following conduct by Mr Eaton:

• unwelcome touching (such as requiring Mr Kordas to hold his hand unnecessarily when he was showing him how to blow dry hair; putting his hands around Mr Kordas’ waist; unnecessarily brushing against Mr Kordas, and slapping Mr Kordas’ bottom with a ruler), and

• unwelcome verbal comments (such as referring to Mr Kordas’ as ‘his bitch’ and saying that he and Mr Kordas were like a gay married couple).

Outcome

The New South Wales Civil and Administrative Tribunal (the Tribunal) determined that both Mr Rony and Mr Eaton had engaged in sexual harassment[89], and Aztec Hair and Beauty was vicariously liable.

The Tribunal noted that whether conduct is of a sexual nature may depend on the context. The Tribunal accepted that the conduct was of a sexual nature in the context of a workplace in which Mr Kordas was the most junior employee, who had no prior relationship with his manager or trainer.

The Tribunal was also satisfied that the conduct had been unwelcome. It was not necessary for Mr Kordas to establish that the perpetrators knew that their conduct was unwelcome.

The Tribunal considered the circumstances of the conduct, including that Mr Kordas’ position as an apprentice meant that he had little, if any, power in relation to his manager and trainer. The Tribunal concluded that a reasonable person, having regard to these circumstances, would have anticipated that the conduct would be likely to humiliate or intimidate Mr Kordas.

Relevance

Sexual harassment is unlawful regardless of the sex or sexual orientation of the parties.  A perpetrator need not know that their conduct is unwelcomed.

The circumstances of the conduct may impact the assessment of whether the conduct is of a sexual nature, as well as whether a reasonable person would consider it offensive, humiliating or intimidating.

Sexual harassment ¬ conduct of a sexual nature

Kerkofs v Abdallah (Human Rights) [2019] VCAT 259 (25 February 2019)

Facts

Ms Kerkofs worked at Parker Manufactured Products Pty Ltd (PMP) from 4 to 16 May 2016. Ms Kerkofs claimed that during that time she was sexually harassed by Mr Abdallah, a colleague.

Ms Kerkofs alleged that at her workplace, an office within the PMP factory, she was subjected to various instances of unwelcome conduct of a sexual nature by Mr Abdallah including him: using nicknames such as ‘sexy’ and ‘honey’; commenting on her body and making sexual comments; physically touching her, and discussing and rating her appearance and that of other women.

Ms Kerkofs also alleged that she was sexually assaulted by Mr Abdallah at home after he drove her home from work (at the direction of his supervisor) because she was unwell. Ms Kerkofs did not willingly participate in or solicit the behaviour, which happened while she was resting on her bed. She succumbed to it because she was too ill to resist.

Ms Kerkofs reported the sexual assault to her manager 3 days after the incident. She subsequently developed a post-traumatic stress disorder.

Outcome

The Victorian Civil and Administrative Tribunal (the Tribunal) found that Mr Abdallah had engaged in sexual harassment[90], and that PMP was vicariously liable for his actions. Mr Abdallah did not dispute that the alleged conduct was properly characterised as sexual harassment but denied he had engaged in any of the conduct alleged.

The Tribunal preferred the evidence of Ms Kerkofs. While Mr Abdallah was evasive in answering questions and sought to interfere with other evidence given to the Tribunal, Ms Kerkofs was a credible witness and her account was largely consistent with accounts she had given to other people. The Tribunal rejected the suggestion that the fact that Ms Kerkofs did not pursue a complaint to the police reflected on her credibility, observing that many people who are victims of sexual assault are not prepared to go through the trauma of giving evidence in a criminal trial.

The Tribunal also did not consider that inconsistencies in Ms Kerkofs’ evidence reflected adversely, to any great extent, on her credibility, observing that inconsistencies in an account of sexual activity are to be expected, and one should not expect an identical account on each occasion a traumatic sexual experience is recounted.

The Tribunal found that it was more probable than not that Mr Abdallah had engaged in each of the alleged acts of sexual harassment, and they were unwelcome. The Tribunal accepted that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Kerkofs would be offended, humiliated or intimidated by that conduct.

Relevance

Inconsistencies in accounts of sexual harassment are to be expected and do not necessarily impact adversely on a complainant’s credibility, particularly given the fact that a complainant may be recalling traumatic events.  Similarly, the credibility of a complaint of sexual harassment that constitutes sexual assault is not undermined simply by reason of the fact that a complainant chooses not to report the conduct to the police. Many people who are victims of sexual assault do not report the conduct, including to the police.

Sexual harassment ¬ unwelcome conduct

Aldridge v Booth [1988] FCA 170 (30 May 1988)

Facts

Miss Aldridge, aged 19, was employed in a cake shop through a government employment scheme, after having been unemployed for a year. This was her first full-time job. She alleged that, during the year of her employment, Mr Booth, who was a proprietor of the business, made repeated unwelcome sexual advances towards and contact with Miss Aldridge. Mr Booth and Miss Aldridge were often the only 2 people working in the shop. The alleged advances included physically touching Miss Aldridge, kissing her, pulling her hair, requesting sexual intercourse, threatening to terminate her employment when she resisted and engaging in unwanted acts of sexual intercourse with her at the cake shop. Miss Aldridge ultimately resigned.

Mr Booth accepted that there was one act of intercourse, which he described as ‘reasonably spontaneous’. He otherwise claimed there was only accidental or unintended touching because of the confines of the shop, and horseplay from time to time.

Outcome

The Federal Court preferred the account of Miss Aldridge and was satisfied that there was a course of conduct engaged in by Mr. Booth that constituted sexual harassment which was, in the main, unwelcome. The Court accepted Miss Aldridge’s evidence that she believed that if she rejected the advances, she would lose her job. The Court held that the sexual harassment ‘continued for as long as it did, and went as far as it did, because of the fear of Miss Aldridge of losing her job.’

Relevance

The Court characterised Miss Aldridge as being both young and vulnerable when compared to Mr Booth, who was the proprietor of the shop in which she worked. The power imbalance between them, and Miss Aldridge’s fear that she would lose her job, were relevant to the Court’s conclusion the conduct was unwelcome.

Sexual harassment ¬ unwelcome conduct – reasonable person

Horman v Distribution Group Ltd [2001] FMCA 52 (19 December 2001)

Facts

Ms Horman worked as a spare parts interpreter for Distribution Group Ltd (Distribution Group), at a branch of its Repco Auto Parts business.  Ms Horman alleged that during the course of her employment she was sexually harassed by her co-workers, which included inappropriate suggestions and comments; texta writing on her body; her bra straps being pulled, and her buttocks being touched. Distribution Group argued that, far from being offended by any incident of ‘tomfoolery’ in the workplace, Ms Horman was an enthusiastic participant and instigator.

Outcome

The Federal Magistrates Court (the Court) found some, but not all, of the alleged conduct took place, and then moved to the question of whether or not that conduct was unwelcome. Ms Horman’s evidence included a letter that she had written towards the end of her employment outlining the harassing behaviour, which concluded: ‘Please, do something, it's not fair for people to get away with such behaviour.’ The Court accepted that the sexual conduct towards Ms Horman was unwelcome by reference to this letter, which was written contemporaneously and was found to represent Ms Horman’s state of mind at the time.

Next the Court considered whether a reasonable person would anticipate the possibility that Ms Horman would be offended, humiliated or intimidated by the conduct. The Court accepted that Ms Horman used crude and vulgar language in the workplace; engaged in physical contact with other employees; exhibited explicit sexual photographs of herself; made disclosures about personal matters such as the shaving of her pubic hair and participated in tomfoolery and arguments. The Court did not accept that it followed that a person in the position of Ms Horman would still not be offended, humiliated or intimidated by some of the actions and remarks directed at her. The Court found that ‘everyone is entitled to draw a line somewhere, and those activities crossed that line’. The Court held:

‘“Giving as good as you get" is often the only way in which a person feels he or she can resist unpleasant language and would not to my mind indicate to a reasonable person the type of acceptance of the language which would relieve a respondent of liability under section 28A of the Sex Discrimination Act.’

Relevance

While the behaviour of a complainant, including inappropriate behaviour, may be relevant in assessing whether or not the conduct was ‘unwelcome’, or whether a reasonable person in the circumstances would have anticipated the possibility that the complainant would be offended, humiliated or intimidated, it will not disqualify a complainant from claiming sexual harassment in relation to other conduct.

Sexual harassment ¬ reasonable person

Smith v Hehir and Financial Advisors Aust Pty Ltd [2001] QADT 11 (26 June 2001)

Facts

Ms Smith was employed by Hehir and Financial Advisors Aust Pty Ltd as a telemarketer. She alleged that Mr Hehir sexually harassed her on a number of occasions, including by unnecessarily and inappropriately touching her (such as massaging her shoulders and hugging her when she was distressed about a personal matter), and making suggestions with sexual connotations to her.

Outcome

The Queensland Anti-Discrimination Tribunal (the Tribunal) found that each of the incidents constituted sexual harassment[91].  In considering whether a reasonable person would have anticipated the possibility of offence in relation to the hugging incident, the Tribunal considered that it did not matter what Mr Hehir thought, as men's and women's perceptions of behaviour which can be characterised as sexual harassment may differ. Nor did the Tribunal consider it necessarily mattered what Ms Smith thought or felt. The Tribunal held:

‘I do not consider that Mr Hehir intended to sexually harass Ms Smith on this occasion. However, the issue becomes whether a reasonable person taking all the circumstances into account (including the unwelcome rubbing on or after 8 February) would have anticipated the possibility that Ms Smith would be offended, humiliated or intimidated by this action … Using another person's distress as an excuse to touch them for purposes which are less than altruistic should never be encouraged or condoned. As reasonable members of society, however, we must equally be on our guard not to discourage genuine and compassionate actions of comfort from one person to another, particularly if there is obvious distress. Whether an action is compassionate or reprehensible will depend on the overall context in every case. The context here is that the action was not one between friends of long standing: it was an action by a middle-aged male employer to a young female employee who had only worked in the office for 2 weeks. It occurred not long after another incident when distress due to a phone call had been used as an excuse to massage the complainant. The action was more than just a touch, such as placing a comforting hand on the distressed person's arm or shoulder: it was more in the form of a cuddle. In my opinion, in this instance in the overall context, a reasonable person should have anticipated that there was the possibility that Ms Smith would have found this action offensive, humiliating or intimidating …’

Relevance

The ‘reasonable person’ test does not turn on the intentions of the perpetrator, or the reaction of the person experiencing sexual harassment. It is an objective test, determined by the specific context of the conduct.

A reasonable person may anticipate the possibility certain conduct would offend, humiliate or intimidate a person in one context, but not in another.

References

Content

[66] Fair Work Act s.12. 

[67] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020) at para. 22. 

[68] Sex Discrimination Act s.28A(2). 

[69] See, for example, G v R & Dept of Health, Housing & Community Services [1993] HREOCA 20 (17 September 1993); Noble v Baldwin & Anor [2011] FMCA 283 28 April 2011; Carter v Linuki Pty Ltd t/as Aussie Hire & Anor [2004] NSWADT 287; Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40; Treglown v Eliam Pty Limited and anor [2010] NSWADT 196; Zanella -v- Carroll's Auto Repairs Pty Ltd & anor [2001] NSWADT 220; Green v State of Queensland, Brooker and Keating [2017] QCAT 8. 

[70] O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356; Maritime Union of Australia, The v Maersk Crewing Australia Pty Ltd [2016] FWCFB 1894. 

[71] See, eg Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report 2020, pp 17-18. Note also, in respect of unwelcomed sexual intercourse, Aldridge v Booth [1988] FCA 170 at paras. 63, 72 and 73; Ewin v Vergara (No 3) [2013] FCA 1311 at paras. 25, 444 and 465 (not disturbed on appeal: Vergara v Ewin [2014] FCAFC 100). 

[72] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020) at paras. 30 and 31. 

[73] Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 at para. 708. 

[74] Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91 at para. 24. 

[75] Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 at para. 708. 

[76] Shiels v James [2000] FMCA 2 at para. 72. 

[77] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020) at para. 23. 

[78] Aldridge v Booth [1988] FCA 170 (30 May 1988) at para. 4. 

[79] Ewin v Vergara (No 3) [2013] FCA 1311 at para. 27 (not disturbed on appeal: Vergara v Ewin [2014] FCAFC 100). 

[80] San v Dirluck Pty Ltd [2005] FMCA 750 at para. 23. 

[81] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020) at para. 26. 

[82] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020) at para. 25. 

[83] Kate Eastman, Sophie Callan and Aditi Rao, ‘Crossing the Line: Behaviour that Gets Barristers into Trouble’ [2017] (Summer) Bar News: Journal of the New South Wales Bar Association 38, 39; Prue Bindon, ‘The Weinstein Factor: Where does the legal profession stand?’ (2018) 247 Ethos: Law Society of the ACT Journal 26, 26. 

[84] Hall v A & A Sheiban (1989) 20 FCR 217 at pp. 231, 247 and 279. 

[85] Fair Work Act s. 789FD(1). 

[86] Cooke v Plauen Holdings Pty Ltd [2001] FMCA 91 at para. 25. 

[87] In contravention of s.22B of the Anti-Discrimination Act 1977 (NSW). Section 22A of that Act defines ‘sexual harassment’ in similar terms to s.28A the Sex Discrimination Act. The key difference is the additional underlined words in s.28A ‘… 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 ...’ 

[88] Within the meaning of s.92 of the Equal Opportunity Act 2010 (Vic). Section 92 of that Act defines ‘sexual harassment’ in similar terms to s.28A the Sex Discrimination Act. The key difference is the additional underlined words in s.28A ‘… 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 ...’ 

[89] In contravention of s.22B of the Anti-Discrimination Act 1977 (NSW). Section 22A of that Act defines ‘sexual harassment’ in similar terms to s.28A the Sex Discrimination Act. The key difference is the additional underlined words in s.28A ‘… 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 ...’ 

[90] Within the meaning of s.92 of the Equal Opportunity Act 2010 (Vic). Section 92 of that Act defines ‘sexual harassment’ in similar terms to s.28A the Sex Discrimination Act. The key difference is the additional underlined words in s.28A ‘… 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 ...’ 

[91] Contravening s.118 of the Anti-Discrimination Act 1991 (Qld). Section 119 of that Act defines ‘sexual harassment’ in comparable (but more extensive) terms to s.28A the Sex Discrimination Act. 

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Published by the Fair Work Commission (www.fwc.gov.au)
Last updated: 27 Jan 2022
Location on last update: https://www.fwc.gov.au/when-worker-sexually-harassed-work