Sexual harassment is a serious workplace issue that affects employees across all industries. Recent legal reforms in Australia have strengthened protections and increased expectations on employers.
This article, by our workplace law team, explains current sexual harassment laws, employer responsibilities, recent legislative changes, and what businesses must do to stay compliant.
This article has been updated in June 2025.
Key Takeaways
Sexual harassment is defined as unwelcome sexual conduct likely to offend, humiliate, or intimidate.
Employers now have a positive duty to eliminate harassment – not just respond after it occurs.
The Fair Work Commission can now handle sexual harassment complaints.
Failing to act can lead to significant financial and reputational damage.
Employers must implement clear policies, training, and complaint-handling procedures.
What is Sexual Harassment?
Under the Sex Discrimination Act 1984 (Cth), sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would consider offensive, humiliating, or intimidating.
Examples include:
Unwanted sexual advances or requests
Inappropriate touching or comments
Sending explicit images or messages
Making sexual jokes or innuendos at work
This definition applies to all workplaces and includes contractors, volunteers, and job applicants, regardless of industry or employment type.
Legislative Developments
1. Positive Duty on Employers
As of 12 December 2022, employers have a positive duty under the Sex Discrimination Act to take reasonable and proportionate steps to eliminate:
Sexual harassment
Sex discrimination
Victimisation and related misconduct
This means preventing harassment – not just responding to complaints.
2. Fair Work Act Amendments
Sexual harassment is now prohibited under the Fair Work Act 2009 (Cth). Key updates:
Harassment is now a valid reason for dismissal
The Fair Work Commission can issue “stop sexual harassment” orders
Protections apply to workers, prospective employees, and business operators
Learn more about your businesses obligations in our Employer’s guide to the Fair Work Act.
3. Changes to the Sex Discrimination Act
The Sex Discrimination Act has undergone significant amendments, including:
- Expanding the definition of “workers” to include contractors and volunteers
- Making victimisation a civil offence
- Introducing accessorial liability for those who instruct, cause, or permit sexual harassment
- Explicitly recognising gender-based harassment
Employer Legal Obligations: What You Must Do
Employers must take proactive steps to comply with their legal obligations and foster a safe workplace. Key responsibilities include:
1. Develop and Implement Policies
- Create comprehensive sexual harassment policies
- Ensure policies are effectively communicated to all employees
- Regularly review and update policies to reflect legislative changes
2. Conduct Training
- Provide regular training on sexual harassment prevention
- Educate all staff on their rights and responsibilities under the law
- Train managers to handle complaints appropriately
3. Establish Complaint Handling Procedures
- Implement clear and accessible grievance procedures
- Ensure complaints are handled confidentially and promptly
- Provide multiple points of contact for reporting incidents
- Protect complainants from victimisation
4. Address Bystander Conduct
Encourage intervention when inappropriate conduct is witnessed
Educate staff that laughing off or ignoring misconduct can still create liability
Why Addressing Sexual Harassment in the Workplace is Crucial
Addressing sexual harassment is not only a legal obligation but also essential for maintaining a positive workplace culture. Key reasons include:
- Financial Risks: Increasing damages awarded in claims can significantly impact businesses.
- Reputational Damage: Negative publicity can harm an organisation’s brand and client relationships.
- Government Tenders: Organisations with poor workplace practices may be excluded from government contracts.
Real-World Examples: Case Law Highlights
Fraser-Kirk v David Jones
A former employee claimed the CEO sexually harassed her with inappropriate comments and text messages. The case settled for $850,000, reflecting the reputational and financial impact of inaction.
Golding v Sippel and The Laundry Chute Pty Ltd
A manager solicited sex from a junior employee in exchange for more work. Damages were increased on appeal from $30,000 to $130,000, underscoring courts’ growing intolerance of harassment.
How Employers Can Stay Compliant
To reduce legal risk and support a safe workplace, employers should:
- Review and update sexual harassment policies regularly
- Conduct regular, mandatory, training sessions for all staff
- Establish a whistleblower hotline managed by an independent third party
- Provide multiple reporting channels for complaints
- Foster a culture of safety, respect and accountability
Frequently Asked Questions (FAQs)
What is the legal definition of sexual harassment in Australia?
Sexual harassment is defined under the Sex Discrimination Act 1984 (Cth) as unwelcome conduct of a sexual nature that could offend, humiliate, or intimidate a reasonable person.
What is the positive duty imposed on employers?
The positive duty requires employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination, and related unlawful conduct in the workplace.
Can an employee be dismissed for sexual harassment?
Yes, under the Fair Work Act 2009 (Cth), sexual harassment is a valid reason for dismissal.
What are the consequences of failing to address sexual harassment?
Employers may face significant financial penalties, reputational damage, and exclusion from government tenders if they fail to address sexual harassment effectively.
How can employers prevent sexual harassment in the workplace?
Employers can prevent sexual harassment by implementing robust policies, conducting regular training, establishing clear complaint-handling procedures, and fostering a culture of respect.
For tailored legal advice or assistance with workplace policies, contact our experienced employer lawyers today.
