Sexual harassment at work

Workers, future workers and people conducting a business or undertaking (PCBUs), such as self-employed people or sole traders, are protected from sexual harassment at work. It’s important to understand what sexual harassment is, and what a PBCUs obligations are to prevent it within a workplace.

Is sexual harassment unlawful?

Sexual harassment is unlawful under health and safety, and workplace legislation both federally and at state level. Every person has the right to a safe work environment, free from harm, which includes safeguarding against sexual harassment.

PBCUs have a responsibility to actively take reasonable and fair steps to prevent sexual harassment, gender-based discrimination, and victimization in the workplace. People who experience sexual harassment can take action against businesses and employers who don't stop such behaviour at work.

What is sexual harassment?

Sexual harassment is unlawful behaviour that consists of three key elements, namely behaviour that:

is unwelcome
is of a sexual nature, and
a reasonable person who is aware of the circumstances, considering the situation, could possibly make the person subjected to the conduct feel offended, humiliated or intimidated.

Unwelcome behaviour

Behaviour is unwelcome if it is not solicited or invited, and is regarded by the target as undesirable or offensive. It is irrelevant that the conduct in question may not have been unwelcome to others or has been an accepted feature of the workplace in the past.

Conduct of a sexual nature

A person sexually harasses another person if they (including but not limited to):

make an unwelcome sexual advance
make an unwelcome request for sexual favours
engage in other unwelcome conduct of a sexual nature, which 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.

Offence, humiliation, intimidation

Unwelcome behaviour of a sexual nature may constitute sexual harassment if, in the circumstances, a reasonable person (aware of the circumstances) would anticipate the possibility that the recipient would feel offended, humiliated or intimidated by the conduct.

Whether behaviour is sexual harassment depends on how a reasonable person would interpret the behaviour in that situation. Behaviour that is sexual harassment in one situation may not be in a different situation

Circumstances relevant to a determination of sexual harassment 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, and
any other relevant circumstance.

Hostile work environments

Workplace legislation includes protections not just for unlawful behaviour directed at a worker, but where a PCBU and/or employer does not prevent 'hostile work environments'.

In this situation, conduct does not need to be directed at a specific person, it just needs to be offensive, intimidating or humiliating to a person because of their sex or a characteristic that appertains to or is imputed to a person of that sex.

General sexual banter, or innuendo and offensive jokes can result in some people feeling unwelcome or excluded.

Victimisation

Victimisation is unlawful, and occurs when someone is treated unfairly in response to allegations, assertions, complaints, or proceedings of sexual harassment, because they:

refused to do something that would contravene the legislation
complained about something that is unlawful, or
were involved in another person’s complaint.

Victimisation at work

Sexual harassment is unlawful at work and 'in connection with' work.

While it’s not defined in legislation, various Court decisions have found:

Any place which is attended for the purposes of performing one’s work responsibilities and duties would amount to work
Deciding whether a particular location amounts to a workplace will require careful analysis of the chain of events leading to the person being there

Sexual harassment at work training course

Master Builders conducts training for members on sexual harassment at work. We have a range of courses including for business owners/senior leaders on how to prevent sexual harassment, and sessions for workers explaining to them what sexual harassment is and what their obligations are.

SEE TRAINING COURSES