Sexual harassment remains a serious legal and cultural challenge in Australian workplaces. New laws now require employers to go beyond just responding to complaints — they must also take active steps to prevent harassment and eliminate it wherever possible. We take you through your employer responsibilities, plus offer practical tips to help manage risks effectively.
What is sexual harassment?
Under Australian law, sexual harassment occurs where a person engages in unwelcome conduct of a sexual nature in circumstances where a reasonable person would anticipate that the conduct might cause offence, humiliation or intimidation. This definition is set out in the Sex Discrimination Act 1984 (Cth) (SD Act) and is applied uniformly across jurisdictions.
Importantly, the focus is on the impact of the behaviour, not the intention behind it. Conduct that may be considered “casual” or “harmless” by one person can amount to unlawful harassment if it creates a hostile or uncomfortable environment for another.
Sexual harassment can take many forms. It may involve physical contact, verbal comments, sexually explicit jokes, repeated invitations despite refusal, suggestive messages, or the display of offensive material. The conduct may occur in person, online, or outside of normal working hours if sufficiently connected to the workplace.
Related forms of unlawful behaviour include:
- Sex-based harassment: unwelcome conduct based on a person’s sex, even where the behaviour is not overtly sexual.
- Hostile work environment harassment: conduct that creates a degrading or offensive environment, even if the conduct is not targeted at a particular individual.
What are the laws around sexual harassment in the workplace?
Australia has multiple laws and regulations to prevent and respond to sexual harassment in the workplace. These include:
Sex Discrimination Act 1984 (Cth)
The SD Act is the primary legislation governing sexual harassment at the federal level. It prohibits both sexual harassment and sex-based harassment, as well as behaviour that contributes to a hostile workplace environment. The SD Act applies across all employment contexts, including to employees, contractors, volunteers, prospective workers, and clients.
Fair Work Act 2009 (Cth) (FW Act)
The FW Act also provides protections against workplace sexual harassment. Since March 2022, workers who experience sexual harassment can apply to the Fair Work Commission for a stop sexual harassment order, similar to those available for bullying. These protections apply broadly across workplaces and include employees, contractors, interns, and volunteers.
Work Health and Safety (WHS) Laws
Sexual harassment is now recognised as a psychosocial hazard under WHS legislation. Employers have a duty to ensure, as far as reasonably practicable, that workers are not exposed to health and safety risks arising from sexual harassment. This includes implementing control measures and responding to incidents appropriately.
State and Territory Laws
All states and territories also have anti-discrimination laws that prohibit sexual harassment. While these largely mirror the federal framework, they offer alternative complaint mechanisms and can include broader definitions or remedies.
In any event, it is critical that employers ensure that they are meeting their obligations under both federal legalisation and any applicable state legislation.
What is the positive duty?
In response to the findings of the Respect@Work Inquiry, the SD Act was amended to introduce a positive duty on employers and persons conducting a business or undertaking (PCBUs). This duty requires organisations to take reasonable and proportionate measures to prevent, as far as possible, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and victimisation. This is one of the most significant shifts in Australia’s approach to preventing workplace sexual harassment.
Under this positive duty, organisations must take reasonable and proportionate measures to eliminate, as far as possible:
- sexual harassment
- sex-based harassment
- hostile work environments on the ground of sex
This legal duty moves beyond simply reacting to complaints. It requires proactive steps to prevent unlawful conduct before it occurs. Key elements of compliance include:
- identifying and managing systemic risks
- promoting a respectful and inclusive workplace culture
- providing leadership and accountability from senior management
- regular training and clear reporting pathways
- reviewing policies and monitoring outcomes.
The Australian Human Rights Commission (AHRC) has been given new enforcement powers to ensure organisations are meeting this duty. The AHRC can investigate compliance, issue compliance notices, and enter into enforceable undertakings with organisations that fail to meet their obligations.
What are the legal pathways for making a complaint?
There are several avenues available for individuals who experience workplace sexual harassment. The appropriate pathway may depend on the nature of the conduct, the desired outcome, and the applicable jurisdiction. In many cases, individuals may have access to more than one forum.
Australian Human Rights Commission
Under the SD Act, a person can lodge a complaint with the AHRC about sexual harassment, sex-based harassment, or hostile work environments. The AHRC will assess whether the complaint is within jurisdiction and may facilitate conciliation between the parties. If the matter is not resolved, the complainant may proceed to the Federal Circuit and Family Court of Australia or the Federal Court of Australia for a determination. This pathway can result in orders for compensation and other remedies.
Fair Work Commission (FWC)
The FW Act provides a mechanism for individuals to apply to the FWC in relation to workplace sexual harassment. The FWC can:
- deal with disputes about sexual harassment between workers and employers, including through mediation or arbitration (if agreed); and
- make “stop sexual harassment” orders if it is satisfied that a worker has been sexually harassed at work and there is a risk of it continuing.
If an order is made and later contravened, the individual may seek civil remedies. In addition, sexual harassment may also form the basis of a general protections claim if the complainant experiences adverse action (for example, demotion or dismissal) for raising concerns.
State and Territory Anti-Discrimination Commissions
Each state and territory has anti-discrimination legislation and a designated commission or tribunal to handle complaints. Individuals can lodge a complaint with the relevant body (for example, the Victorian Equal Opportunity and Human Rights Commission, Anti-Discrimination NSW, etc.).
If the matter cannot be resolved through conciliation, it may be referred to a tribunal (such as VCAT or NCAT) for a formal hearing and determination. These bodies may also issue binding orders, including compensation or behavioural undertakings.
Work Health and Safety regulators
Workplace sexual harassment is recognised as a psychosocial hazard under WHS laws. Employers must identify, assess, and control risks to workers’ health and safety, including risks arising from sexual harassment. In serious cases, workers may:
- report unsafe workplace conditions to the relevant WHS regulator (e.g WorkSafe, SafeWork NSW); and
- lodge a workers’ compensation claim if psychological injury arises from workplace harassment.
WHS regulators may investigate and take enforcement action where duty holders fail to manage known or foreseeable risks.
Courts and common law claims
In some cases, individuals may pursue a civil claim in a state or federal court for:
- negligence, where the employer failed to provide a safe working environment; or
- breach of contract, if the employer failed to follow its own workplace policies or contractual obligations.
These claims typically require legal representation and follow standard litigation procedures. Remedies may include damages for pain, suffering and loss of income.
Common employer questions about sexual harassment
At Hamilton Locke, we work with businesses of all sizes to navigate complex workplace harassment scenarios. Here are answers to some of the most common questions employers ask.
Do we need a written sexual harassment policy?
Yes. While a written policy is technically not mandatory under federal law it is expected. A written policy is a critical part of complying with your legal obligations under the SD Act, WHS laws, and the positive duty. Your policy should define sexual harassment, provide real-world examples, explain reporting procedures, and outline consequences for breaches. Without a documented policy, it becomes difficult to prove your organisation took reasonable steps to prevent harm.
Is training mandatory?
Training is not explicitly called out under federal law, but it is a critical part of complying with your legal obligations. The AHRC and regulators view regular training as a key part of fulfilling your positive duty and WHS obligations. Training helps ensure staff and managers know what behaviour is unacceptable and how to respond. It also shows you’ve taken proactive steps to meet your legal obligations.
What does “reasonable and proportionate” mean in practice?
The actions you’re expected to take will depend on your business size, resources, and risk profile. However, most workplaces should have:
- a clear sexual harassment policy
- a workplace code of conduct
- regular staff training
- accessible and confidential reporting processes
- fair and prompt complaint handling procedures
- a plan for reviewing and improving prevention efforts.
These steps are consistent with guidance from the AHRC and align with expectations set out in the new Model Code of Practice: Preventing and Responding to Workplace Sexual Harassment (Code) published in March 2025. The Code provides national best-practice standards and is designed to work alongside WHS laws. While not legally binding in every jurisdiction, regulators may refer to it when assessing compliance or enforcement action.
In some jurisdictions, such as NSW and QLD it is a requirement to comply with Codes of Practice. It will be very difficult to demonstrate that you have taken all reasonably practicable steps to eliminate sexual harassment in the workplace if you have not complied with the Code.
Do small businesses have the same obligations?
Yes. The legal duties apply to businesses of all sizes. What’s considered ‘reasonable’ however differs based on the size and resources of the business. For example, a small business might not have dedicated HR staff, but it still needs to make it clear what behaviour is unacceptable and provide a way for employees to raise concerns.
Can sexual harassment occur outside the office?
Yes. The law applies to any conduct that is connected to work. This includes work events, offsite meetings, client functions, travel, and digital communication between colleagues. Employers should make clear that expected standards of behaviour apply wherever work is being performed or represented.
Can we be held responsible for what employees do?
Yes. Employers can be vicariously liable for harassment by employees or agents unless they can show they took all reasonable steps to prevent it. This includes having policies, training, a complaints process, and a culture that does not tolerate harassment. A failure to take these steps can result in liability for both the individual and the business.
Do we need a workplace prevention plan?
A prevention plan is highly recommended for all employers across Australia as part of meeting their obligations under the SD Act, WHS laws, and the positive duty. While not currently mandatory in most jurisdictions, prevention plans are considered best practice and may be relied on by regulators in assessing whether your organisation has taken reasonable and proportionate steps to prevent harm.
However, in Queensland, prevention plans are now mandatory. Under the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2024 (Qld), from 1 March 2025, any employer or PCBU that identifies sexual harassment as a risk must implement a written prevention plan. This plan must:
- identify harassment risks and outline control measures;
- include the reasoning for those controls;
- be accessible and written in plain language;
- explain how workers were consulted in its development;
- set out reporting, investigation, and communication procedures; and
- be reviewed regularly and after incidents or concerns.
Failure to comply may lead to enforcement action, including improvement notices and penalties.
Case studies
Understanding the law is one thing — seeing how it plays out in real workplaces is another. In this section, we explore real case studies of workplace sexual harassment to show how issues can arise, and the legal implications for employers.
Taylor v August and Pemberton Pty Ltd & Anor1 In this case, the applicant was employed by a jewellery business operated by Mr Grew, the sole director and manager. During her employment, she received several expensive gifts and was subject to repeated comments from Mr Grew about her appearance, including remarks such as “you have a beautiful body.” Mr Grew also declared romantic feelings on multiple occasions, despite the applicant expressing interest only in a platonic relationship. The applicant resigned and made a workers compensation claim. Justice Katzmann found that the gifts and comments, on their own, did not amount to sexual harassment. This was because a reasonable person may not have anticipated the applicant would feel offended or humiliated in the context of their ongoing conversations about health and fitness, where the applicant had also made comments about Mr Grew’s appearance. However, the continued romantic advances after clear rejection were held to constitute sexual harassment under the SD Act. The Court awarded the applicant $140,000 in general damages, $40,000 for victimisation and $15,000 in aggravated damages, including in relation to the conduct during litigation. |
Director and businesses convicted and fined for persistent workplace sexual harassment Whitelom Investments Pty Ltd and Whitelom Pty Ltd operated two cafes. The companies shared a director, who managed both cafes (Director). The Court found the Director physically and verbally sexually harassed six employees at the two cafes over a number of years, including one worker who was 16 years old at the time. The Court found the conduct included touching and groping, alongside making sexually intrusive and suggestive comments. WorkSafe Victoria charged each of the Whitelom entities for failing to ensure a safe workplace. The Director also faced two charges for a failure to ensure a workplace under his control was safe and without risks to health. A separate worker at one of the cafes who was found to have groped a young co-worker was also charged with a single breach of the employee duty. All of the defendants entered a plea of guilty to their respective charges. The Court heard that while the Whitelom entities had an online bullying and harassment policy, none of the employees understood who they could make a complaint to. By their plea, it was admitted that it was reasonably practicable for the Director not to sexually harass his staff, and for the companies to provide employees with an avenue for reporting incidents of sexual harassment, other than reporting them to the Director. The Director was fined $40,000, Whitelom Pty Ltd was fined $140,000, and Whitelom Investments Pty Ltd was fined $110,000. A conviction was recorded against each of the defendants, except the charged worker. The worker avoided conviction by entering into a diversion plan requiring the worker to enter into a good behaviour bond for 12 months, write a letter of apology to his victim, and donate $750 to a Court Fund to be distributed to charities and community services. |
Get in touch
For further guidance and advice on workplace sexual harassment, please contact the Hamilton Locke Workplace and Safety team.
1[2023] FCA 1313.
