1 Core obligations

Under the Sex Discrimination Act 1984 (Cth), sexual harassment is:

  • Any unwelcome sexual advance
  • Unwelcome request for sexual favours
  • Other unwelcome conduct of a sexual nature in relation to the person harassed

in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 1

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Risk description

1 Core obligations

Organisations1 must proactively prevent sexual harassment, harassment on the ground of sex and workplace environments that are hostile on the ground of sex (‘sexual harassment and related inappropriate conduct’).

In essence:

  • Sexual Harassment is conduct that is:
    • unwelcome
    • of a sexual nature, and
    • reasonably anticipated to possibly offend, humiliate or intimidate.
  • Harassment on the ground of sex is conduct that is:
    • unwelcome
    • based on the sex of the person harassed 
    • demeaning, that is, conduct that debases or degrades another person (but is not necessarily sexual), and
    • reasonably anticipated to possibly offend, humiliate or intimidate.
  • A workplace environment is hostile on the ground of sex if:
    • it results from conduct in a workplace, and
    • the conduct is reasonably anticipated to possibly result in a workplace environment being offensive, intimidating or humiliating for people of one sex in general, rather than a particular person.
2 What to focus on

Under the Sex Discrimination Act 1984 (Cth), Organisations have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and related inappropriate conduct.

Organisations also have a duty under work health and safety laws to eliminate or minimise psychosocial risks, such as risk associated with sexual harassment and related inappropriate conduct. Board members must exercise due diligence to ensure their Organisation complies with this duty.

The Respect at Work Council has published a Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment.  Further guidance from the Australian Human Rights Commission on the positive duty is expected to be published soon.

Ultimately, the focus should be on building and maintaining a culture of prevention, through:  

  1. Good leadership and governance, including commitment to gender equality and inclusivity
  2. Human-centred and trauma-informed processes and systems.
  3. ‘Respectful transparency’ of how, in a de-identified way, the Organisation is taking appropriate action in response to sexual harassment and related inappropriate conduct
  4. Applying a safety lens and ensuring there are appropriate systems and processes for managing responding to sexual harassment and related inappropriate conduct as a workplace health and safety risk, and
  5. Building psychological safety and trust that the Organisation is committed to preventing and appropriately responding to harmful behaviours.


The Champions of Change Coalition’s Disrupting the System Report includes more information about how an Organisation can build psychological safety and trust.

This framework creates a virtuous cycle of prevention by leading to the increased reporting of any concerns. When appropriate and proportionate action is taken in response to these concerns, trust is built in the Organisation over time that sexual harassment and related inappropriate conduct is not tolerated and there will always be an appropriate response.  Given this understanding and trust, it becomes less likely that the conduct will occur in the first place. 

3 Example wording

This wording could be used in Board communications when describing an Organisation’s positive duty to eliminate sexual and related inappropriate conduct, under anti-discrimination and work health and safety laws. 

We have a duty to eliminate, as far as possible, sexual and sex-based harassment in our workplace, and hostile workplace environments (‘sexual harassment and related inappropriate conduct’). 

Sexual harassment occurs when a person:

  • makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to another person, or
  • engages in other unwelcome conduct of a sexual nature in relation to the other personin circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Harassment on the ground of sex occurs where:

  • by reason of the sex of the person harassed (or a characteristic that generally relates to their sex or that is imputed to their sex), a person engages in unwelcome conduct of a demeaning nature in relation to the person harassed, and
  • this occurs where a reasonable person, in all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

A person (Person A) subjects another person (Person B) to a workplace environment that is hostile on the ground of sex if:

  • the Person A engages in conduct in a workplace where the Person A and/or Person B work; 
  • the Person B is in the workplace at the same time as or after the conduct occurs, and
  • a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person (or a characteristic that generally relates to their sex or that is imputed to their sex).

The definition of ‘workplace’ under the legislation is a place where work is carried out for a business or undertaking. It includes any place where a worker goes, or is likely to be, while at work. Sexual harassment and related inappropriate conduct can happen:

  • At a worker’s usual workplace
  • Where a worker is working remotely, including if the person’s workplace is their home
  • In a place where the worker is undertaking work at a different location (such as a client’s home)
  • Where the worker is engaging in a work-related activity such as conferences, training, work trips, work-related corporate events of a work-related social activity like a Christmas party
  • By phone, email or online (including through social media platforms) 
  • Outside of work hours, if the interaction involves other workers

Sexual harassment and related inappropriate conduct may be perpetrated by various people including an employer, supervisor, co­ worker, client, patient or customer.

Download this Risk Description here and share this with your network today.

This document is intended to provide general guidance only. The contents should not be relied upon as legal advice.  Specific legal advice should be sought in particular matters.

1 An employer or a ‘person conducting a business or undertaking’. A person conducts a business or undertaking whether the person conducts the business or undertaking alone or with others, and whether or not the business or undertaking is conducted for profit or gain. 

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We need to set the tone and lead from the top. With this in mind, here are examples of some things we should never say or accept from others:

  • A bullying and harassment policy should be enough to deal with sexual harassment and related inappropriate conduct.
  • We have low report rates of sexual harassment and related inappropriate conduct, so it’s not a problem at this organisation.
  • We have a reporting hotline which is well publicised, but we don’t get many calls about sexual harassment or related inappropriate conduct, so it’s not an issue here.
  • I have been in this industry for decades and I have never seen it, so it mustn’t be happening.
  • That’s the remit of our HR team. If there were ever a big issue, they would escalate it to us.
  • Our staff engagement scores are terrific and there is no indication of there being a sexual harassment problem here. That means we’re doing enough.
 
Most cultural issues aren’t hiding in plain sight. Often, it’s the things that aren’t being talked about that we need to be concerned about. Research tells us that sexual harassment is common and that it’s significantly under reported. In fact, increased reporting can indicate greater psychological safety and a culture of trust that the organisation takes sexual harassment seriously. We have a positive duty to prevent sexual harassment and related inappropriate conduct, and to continuously assess and evaluate whether we are meeting the requirements of the duty. 
 

We need to ensure our people feel safe to come forward and report instances of sexual harassment or related inappropriate conduct in the workplace. The only way they’ll do this is if they can see that leadership takes this issue seriously.

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We take the health and wellbeing of our people very seriously. We work hard to improve our safety outcomes and reduce injuries, and overall we do a good job of preventing physical harm to our people.

As we have seen in many other organisations, sexual harassment is more prevalent than a lot of people think. This represents a real risk to keeping people safe in the workplace, and to our people’s wellbeing and productivity.

It can also cause significant damage to our reputation, our brand as an employer of choice, lost business, and to our corporate standing. If we fail to take steps to address this conduct, we may be subject to enforcement action and/or civil penalties. Our organisation may also be held liable for inappropriate conduct committed by our employees unless we took all reasonable steps to prevent the conduct occurring. 

We need to make it crystal clear to everyone in the organisation that we have zero tolerance for any form of sexual harassment. We will always take appropriate action when sexual harassment or related inappropriate conduct occurs. We seek to prevent these unlawful behaviours and to have a zero-harm workplace. We welcome the new Australian positive duty placed on organisations by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 and commit to implementing its provisions in a timely fashion and demonstrating our leadership. 

We need to treat sexual harassment and related inappropriate conduct risks as we would any other physical or psychological risk in the workplace. We already have existing systems and processes in place for identifying and mitigating workplace health and safety risks and hazards, and for defining our desired safe and respectful culture. 

We need to embed these sexual harassment response frameworks into our existing risk reporting practices and organisational culture, so all forms of sexual harassment and related misconduct are eradicated.

We can’t afford to wait on this; we need to act urgently. 

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Sexual harassment is any unwelcome sexual advance, request for sexual favours or other conduct of a sexual nature. It’s not only a human rights issue, which is unlawful under the Sex Discrimination Act, but also a workplace health and safety (WHS) risk which can cause significant psychological, physical, reputational and financial harm.

Existing systems and processes for managing WHS risks and hazards should be used to eliminate the risks and control the likelihood of sexual harassment occurring in the workplace.

Board members and senior executives have a duty to address this. Everyone deserves to work in a safe, respectful and inclusive environment. Respect is everyone’s business.

Sexual harassment is any unwelcome sexual advance, request for sexual favours or other conduct of a sexual nature. It’s not only a human rights issue, which is unlawful under the Sex Discrimination Act, but also a workplace health and safety (WHS) risk which can cause significant psychological, physical, reputational and financial harm.

Existing systems and processes for managing WHS risks and hazards should be used to eliminate the risks and control the likelihood of sexual harassment occurring in the workplace.

Board members and senior executives have a duty to address this. Everyone deserves to work in a safe, respectful and inclusive environment. Respect is everyone’s business.