Sexual harassment is a serious problem in Australian workplaces. It can have a devastating impact on victims, both emotionally and professionally. In recent years, awareness of the problem of sexual harassment has increased and the Australian government has taken action to address it.
In this article, Farrh Motley, a workplace lawyer, provides an overview of the recent amendments to sexual harassment laws in Australia. This article is intended to serve as your guide to sexual harassment laws in Australia 2023. It looks at the main changes that have been made and how they will affect employees and employers.
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What is Sexual Harassment?
Sexual harassment means any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.
Types of sexual harassment
There are many different types of workplace sexual harassment in Australia. Some of the most common types include:
Quid pro quo harassment: This is when someone in a position of power uses their authority to coerce another person into sexual activity. For example, a supervisor might tell an employee that they will be promoted if they have sex with them.
Hostile work environment harassment: This is when the conduct of one or more employees creates an intimidating, hostile, or offensive work environment for another employee. For example, if one employee is constantly making sexually explicit comments or jokes, this could create a hostile work environment for other employees.
Physical contact: This can include anything from unwanted touching to sexual assault.
Verbal conduct: This can include anything from sexually explicit comments to jokes to threats.
Visual conduct: This can include anything from displaying pornography to making sexually suggestive gestures.
Cyber-harassment: This can include sending sexually explicit emails, text messages, or social media messages.
Discriminatory harassment: This is when someone is harassed because of their sex, gender identity, sexual orientation, marital status, pregnancy, breastfeeding, disability, race, religion, or other personal characteristic.
You may note that not all of these types of conduct will constitute sexual harassment in Australia. For example, a single incident of unwanted touching may not be enough to create a hostile work environment. However, if the conduct is repeated or if it is severe, it may be considered sexual harassment.
Examples of sexual harassment
Sexual harassment at the workplace can include someone:
touches, gropes or otherwise physically touches you without your consent,
makes remarks to you that have a sexual meaning,
asks you for sex or sexual favours,
stares and glares at you,
shows you indecent and offensive material so that you or others can see it,
makes sexual gestures or suggestive body movements towards you,
makes sexual jokes and remarks around you or to you,
asks you about your sex life,
insults you with sexual remarks,
behaves in a way that makes you uncomfortable during a phone call,
indecently exposes themselves to you,
sexually assaults you.
What are the changes to Sexual Harassment Law in Australia?
Broadening the definition of sexual harassment
The definition of sexual harassment in Australia before February 2023 was:
“Sexual harassment occurs when a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the individual who is being harassed or if a person engages in other unwelcome conduct of a sexual nature in relation to the person harassed.“
The earlier definition was narrow. Because it only included specific types of behaviours, such as making sexual advances or requests for sexual favours.
However, the new law broadened the definition of sexual harassment to include a wider range of behaviours. The new definition includes:
Unwanted sexual advances
Requests for sexual favours
Visual, verbal, or physical conduct of a sexual nature
Any other conduct of a sexual nature that is unwelcome or offensive.
The definition in the Sex Discrimination Act is now more inclusive, as it covers a wider range of behaviours that can be considered sexual harassment.
Characteristics
Old Definition
New Definition
Scope
Only includes specific types of behaviours.
Includes a wider range of behaviours.
Intent
The behaviour must be intended to be sexual in nature.
The behaviour does not have to be intended to be sexual in nature, as long as it is unwelcome or offensive.
Context
The behaviour does not have to be intended to be sexual in nature, as long as it is unwelcome or offensive.
The behaviour must occur in a work-related setting.
Expanding the definition of sexual harassment is a significant step forward in creating a more inclusive and respectful society. It sends a clear message that sexual harassment will not be tolerated and that everyone who is affected by it has the right to be protected. The new definition also makes it easier for people to understand what sexual harassment is and to know that they have the right to report it if they experience it.
Employer responsibilities
The new law provides that employers now have a positive duty to take all reasonable steps to prevent sexual harassment in the workplace. Employers are now required to take proactive steps to prevent sexual harassment from occurring, rather than simply responding to complaints after they have happened.
The positive duty has made a significant difference in the way that employers address sexual harassment. However, earlier, employers were only required to take steps to address sexual harassment once it had occurred. Consequently, many employers were not taking reasonable and proportionate measures to prevent sexual harassment from happening in the first place.
The positive duty has also made it easier for employees to report sexual harassment. Under the old law, employees who experienced sexual harassment often felt that they would not be supported by their employer if they came forward. However, the positive duty sends a clear message to employers that they have a responsibility to take sexual harassment seriously and to support employees who come forward.
As a result, employers may now take a more proactive approach to preventing sexual harassment. They may develop clear policies and procedures on sexual harassment, provide training to employees, and create a culture of respect and inclusion in the workplace. These changes are making a real difference in the fight against workplace sexual harassment.
Increased penalties for sexual harassment
The new law, which took effect on 6 March 2023, increased the penalties for employers who do not comply with sexual harassment laws in Australia.
For individuals: The maximum penalty for individuals who sexually harassed another person has been increased from $66,000 to $132,000.
For Businesses: The maximum penalty for businesses that failed to take reasonable steps to prevent sexual harassment in the workplace has been increased from $33,000 to $66,000.
Implementation Timeline
The implementation timeline for the new laws is as follows:
6 March 2023: The laws come into force. This means that sexual harassment that occurs on or after this date will be subject to the new laws.
1 July 2023: Employers have until this date to review and update their sexual harassment policies and procedures to comply with the new laws.
1 January 2024: The Australian Human Rights Commission (AHRC) will accept complaints of workplace harassment covered by the new laws from this date.
What Does the New Sexual Harassment Law in Australia Mean for Employers?
The sexual harassment law 2023 in Australia changes the landscape for employers while dealing with sexual harassment.
These changes include:
A positive duty to prevent sexual harassment. Employers must take all reasonable steps to prevent sexual harassment from occurring in their workplace. These reasonable steps may include:
having a clear and comprehensive sexual harassment policy in place,
providing training to employees on sexual harassment, and
having a complaints-handling procedure in place that is fair and confidential.
New remedies for victims of sexual harassment. Victims of sexual harassment can now enforce a wider range of remedies, including compensation for losses, reinstatement to their job, and apologies.
Increased penalties for non-compliance. Employers who fail to comply with the new sexual harassment law could face significant penalties, including fines of up to $63,000 for individuals and $315,000 for corporations.
Employer obligations
The new Sexual Harassment Act requires employers to:
Have a clear and comprehensive sexual harassment policy. The policy should define sexual harassment, set out procedures for making and investigating complaints, and outline the consequences for employees who engage in sexual harassment.
Train employees on sexual harassment. Training should cover the definition of sexual harassment, the different types of sexual harassment and the consequences of engaging in sexual harassment.
A fair and confidential procedure for handling complaints. The procedure should allow employees to complain about sexual harassment in a confidential and timely manner.
Take all reasonable steps to prevent sexual harassment. This includes monitoring the workplace for signs of sexual harassment, providing opportunities for employees to raise concerns and taking disciplinary action against employees who engage in sexual harassment.
Preventative measures
Employers can do several other things to prevent sexual harassment in the workplace. They can:
Create a culture of respect and inclusion. Employers should focus on creating an environment where everyone feels valued and respected, regardless of gender or sexual orientation.
Encourage open communication. Employees should feel comfortable raising concerns about sexual harassment, and employers should listen to those concerns.
Support victims of sexual harassment. Employers should provide their support to the victims of sexual harassment, e.g. in the form of counselling and legal assistance.
Penalties for non-compliance
Employers who fail to comply with the new sexual harassment law could face significant penalties, including fines of up to $63,000 for individuals and $315,000 for corporations. In addition, employers could also be ordered to pay compensation to victims of sexual harassment.
What Does the New Sexual Harassment Law in Australia Mean for Employees?
Employee rights
The new sexual harassment law in Australia focuses on strengthening employee rights. It provides employees:
the right to a workplace environment free from sexual harassment.
the right to make a complaint about sexual harassment to their employer, the Fair Work Commission, or the Australian Human Rights Commission.
the right to be protected from victimisation if they make a complaint about sexual harassment.
the right to seek compensation for any losses they have suffered as a result of sexual harassment.
The right to a workplace environment free from harassment.
In Australia, employees have the right to work in an environment where they do not face needless sexual attention or conduct. This includes behaviour that is of a sexual nature or based on gender identity that is unwelcome, offensive, humiliating, or intimidating.
The right to make a complaint.
Any employee that faces sexual harassment can file a complaint in Australia. Such complaints can be made to the employer, the Fair Work Commission or the Australian Human Rights Commission. They are all responsible to address sexual harassment complaints and taking appropriate action.
However, employees need to follow a complaint process to report sexual harassment. First, employees must report the case to their employer. The employer must deal with complaints of sexual harassment and take appropriate action against the perpetrator.
If the employee is not satisfied with the outcome of the employer’s investigation, they can file a complaint with the Fair Work Commission or the Australian Human Rights Commission.
The right to be protected from victimisation if they make a complaint about sexual harassment.
Employees cannot be treated less favourably because they have made a complaint about sexual harassment. This includes being demoted, dismissed, or subjected to other forms of negative treatment.
The law makes it clear that victimisation is a form of unlawful discrimination. Employees who believe they have been victimised because they have made a complaint about sexual harassment can make a complaint to the Fair Work Commission or the Australian Human Rights Commission.
The right to seek compensation for any losses they have suffered as a result of sexual harassment.
Employees can claim financial compensation for damages caused by sexual harassment. This could include compensation for lost wages, medical expenses and pain and suffering.
However, there are a number of factors that the court may consider when awarding compensation for sexual harassment. These include the severity of the harassment, the impact of the harassment on the employee and the employee’s loss of income.
Steps to take if you experience sexual harassment
This is a personal decision. However, to figure out the right path for yourself, seek out legal advice from a workplace lawyer tailored to your situation.
But here are a few things you can do to start.
Document Everything
While you’re finding the right way, start documenting everything. Record every instance of sexual harassment you experience. Note the offending behaviour, the parties involved, any witnesses, and the day and time. Be as specific as possible. Writing everything down can strengthen your case if the harassment continues.
If you decide to report sexual harassment, it’s always best if you can give specific dates and comments or behaviours. So if the colleague bumps into you again, or your boss makes another dirty joke in the staff meeting, write it down. Keep these notes outside your office, at home or somewhere else.
Tell someone you trust
Talking to someone you trust about what is happening can make you feel less alone and more supported. This may be a friend, family member, therapist or other person you feel comfortable talking to. They may offer advice and support and help you decide on the next steps.
Talk to your employer.
Many employees are reluctant to report sexual harassment to their employers. You may feel the same way. However, you are protected by law from retaliation from your employer if you make a harassment complaint. Your employer has to prevent sexual harassment and take action against the offender if sexual harassment occurs. Otherwise, they would be punishable under the law.
But you must understand that an employer can only be held liable if they know about the harassment. Simply put, if you do not tell your employer, they cannot do the right thing. Moreover, they can later claim they did not know about the harassment.
Many employees are reluctant to report sexual harassment to their employers. You may feel the same way. However, you are protected by law from retaliation from your employer if you make a harassment complaint. Your employer has to prevent sexual harassment and take action against the offender if sexual harassment occurs. Otherwise, they would be punishable under the law.
But you must understand that an employer can only be held liable if they know about the harassment. Simply put, if you do not tell your employer, they cannot do the right thing. Moreover, they can later claim they did not know about the harassment.
Three tips to keep in mind when complaining to your employer about sexual harassment:
Tip 1: Check your employee handbook, the documents you received during onboarding, your employee portal, or anywhere else official documents are available. You may find something there on the framework for sexual harassment dispute resolution.
Consider seeking legal advice from a workplace lawyer if it’s a policy that clearly states that it’s unreasonable for you to use the sexual harassment procedure.
For example, your supervisor is the harasser, and that is the only person you can turn to. Or you know from previous cases that the workplace culture of reporting sex based harassment is ineffective in your company.
Tip 2: When you complain, document the process. Always ask for written proof that you have made a complaint.
If your employer does not provide you with a copy of the complaint record, send an email with a summary to the person you complained to verbally to provide proof. That way, your employer cannot later claim you didn’t say anything. And should you need to escalate things, you will have a clear record of the chain of events.
Tip 3: Ask for a timeline to know when to expect a response, and follow up if you don’t get a response. Your employer will probably conduct an investigation and decide on the next steps. They may not tell you all the details of the findings, but ideally, they will inform you, at least in general terms.
Your employer doesn’t necessarily have to dismiss the harasser or take the action you want. They only have to make sure that the harassment stops.
Clearly, tell the offender that their conduct is unwelcome.
This is easier said than done. However, by telling the person harassing you to stop the offensive behaviour, you make it clear that you disapprove of their conduct. In some cases, this may even be enough to stop the harassment dead in its tracks. But if you don’t feel safe doing so, don’t be hard on yourself.
Use this approach particularly when dealing with obnoxious and offensive behaviour but not necessarily predatory. You can try saying:
That kind of conversation is inappropriate in the workplace. It makes me uncomfortable. Please stop doing it.
You shouldn’t communicate in that way. It’s offensive to me. Please stop talking to me that way.
I do not want to date you.
Do not give me any more compliments. It makes me uncomfortable.
This way, if the harassment continues and you decide to take your complaint to the employer, it can help to truthfully say that you’ve made it clear the conduct is unwelcome and asked for it to stop.
Consult a workplace lawyer.
In theory, you do not need a lawyer in Australia to report sexual harassment or file a complaint against it.
However, the situation often becomes confusing. You may need advice on whether certain behaviours constitute sexual harassment, or you may have reason to worry that your employer will not respond kindly or effectively to a complaint. Consider seeking legal advice from a workplace lawyer.
Moreover, issues surrounding sexual harassment can present their own unique legal challenges. It is always helpful to discuss your options with a workplace attorney.
A workplace lawyer can explain the legal basis of sexual harassment cases to you. They can help you gather evidence of the sexual harassment you experienced. This evidence may include documentation, witness statements and photographs.
An experienced workplace lawyer may negotiate with the employer and try to resolve the sexual harassment case without going to court. This may include negotiating a settlement agreement that gives the employee compensation for the harm suffered and assurances that the employer will take steps to prevent future sexual harassment. And if the sexual harassment case cannot be resolved through negotiation, a workplace lawyer can file a complaint with the Fair Work Commission.
Lastly, if the sexual harassment case cannot be resolved through either negotiation or the Fair Work Commission, a workplace lawyer can file a lawsuit on behalf of the employee. The lawsuit can seek damages for the employee’s emotional distress, lost wages and other losses.
Three tips from a workplace lawyer for staying safe in the workplace:
Be aware of your surroundings. Pay attention to who is around you and what is going on. If you feel unsafe, trust your instincts and walk away.
Do not be afraid to say no. You have the right to set boundaries and refuse unwanted advances.
Talk to your industrial association. If you are a member of a trade union, they can support and advise you.
If you or someone you know has experienced sexual harassment at work, know you are not alone. There are people who can help you.
How can Employers comply with the New Sexual Harassment Laws?
Some tips on how employers can comply with the new sexual harassment laws in Australia:
Have a written sexual harassment policy
The workplace policy should define sexual harassment and set out the employer’s commitment to preventing and responding to sexual harassment. The policy should also set out the procedures for reporting and investigating sexual harassment complaints.
Train all employees on the sexual harassment policy
Employers should provide training on sexual harassment and the employer’s commitment to preventing and responding to sexual harassment. And educate the employees about the dispute resolution framework for reporting and investigating sexual harassment complaints.
Create a workplace culture that is free from sexual harassment
Employers should create a workplace culture where all employees feel safe and respected. This includes setting a good example by behaving respectfully and by taking steps to eliminate sexual harassment from happening.
Take complaints of sexual harassment seriously
Employers should take complaints of sexual harassment seriously. Their complaints should be investigated promptly and thoroughly. Employers should take all necessary steps to protect the complainant from further harassment.
Respond appropriately to incidents of sexual harassment
If sexual harassment is found to have occurred, employers should take appropriate action to address the situation. This may include taking disciplinary action against the harasser, providing support to the complainant, and taking steps to prevent future incidents of sexual harassment.
Employers must note that sexual harassment laws in Australia are very broad. Therefore, they must take all necessary steps to prevent and respond to sexual harassment, even if the conduct does not meet the strict definition of sexual harassment.
Here are some additional tips for employers:
Be proactive: Do not wait until a complaint of sexual harassment to come in before taking action to prevent it.
Pay attention to context: Sexual harassment can occur in any workplace, regardless of size or industry. It is important for employers to be aware of the context in which sexual harassment may occur and take steps to prevent it.
Be responsive: When a complaint of sexual harassment is received, the employer must respond and take action to rectify the situation.
Be accountable: Employers should be accountable for their actions, and take steps to ensure that their workplaces are free from sexual harassment.
How Can Prosper Law Help?
Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, entertainment, legal counsel and employment law.
If you need to talk to a workplace lawyer, get in touch today.
Contact the team at Prosper Law today to discuss how we can provide you with advice for a fixed fee or at affordable hourly rates.
Director of Prosper Law. Farrah founded Prosper online law firm in 2021. She wanted to create a better way of doing legal work and a better experience for customers of legal services.
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