Employer Responsibilities Under Australian Sexual Harassment Laws

Running a small business means wearing a lot of hats. You’re managing customers, cash flow, hiring, culture, and compliance - often all at once.

But there’s one question we see come up again and again, especially as businesses grow or bring on their first employees: is sexual harassment against the law in Australia?

Yes - and for employers and business owners, the legal risk isn’t limited to what you personally say or do. In many cases, you can be responsible for harassment carried out by your staff, contractors, or agents if you haven’t taken reasonable steps to prevent and respond to it.

Below, we break down what the law says, what “sexual harassment” can look like in a workplace, and what practical steps you can put in place to protect your people and your business.

Is Sexual Harassment Against The Law In Australia?

Yes. Sexual harassment is against the law in Australia.

There are several legal frameworks where sexual harassment can lead to serious consequences for a business, including complaints, investigations, orders to take certain steps, penalties, and damages.

Sexual harassment is most commonly dealt with under:

• Anti-discrimination laws (at both federal and state/territory levels, such as the Sex Discrimination Act 1984 (Cth) and relevant state/territory laws);
• Workplace relations laws (including the Fair Work Act 2009 (Cth) and the Fair Work framework); and
• Work health and safety (WHS) laws (because sexual harassment can create risks to health and safety at work, including psychological health).

Importantly, the question isn’t only whether sexual harassment is unlawful. It’s also:

• What do you need to do as an employer to prevent it?
• What happens if you get a complaint?
• When can the business be legally responsible for someone else’s conduct?

Can A Business Be Liable For Sexual Harassment?

In many situations, yes.

Even if you (as the business owner) weren’t directly involved, a business can be exposed to liability for sexual harassment connected to work. This can include conduct by:

• employees (including managers and supervisors);
• contractors and labour hire workers;
• agents or representatives;
• customers, clients, patients or members of the public (in some situations, particularly where the business fails to take reasonable steps to manage known risks); and
• people at work events (including conferences, parties, networking events, and other “work-related” functions).

This is why prevention and clear processes matter - not just from a culture perspective, but from a risk perspective too.

What Counts As Sexual Harassment At Work?

Sexual harassment isn’t limited to obvious physical behaviour. A lot of the risk for small businesses comes from “grey area” conduct that someone thinks is harmless, friendly, or “just a joke”, but which the law can still treat as unlawful.

Sexual harassment can include unwelcome sexual conduct where a reasonable person would expect the conduct might offend, humiliate or intimidate someone.

Common examples in workplaces include:

• unwelcome touching, hugging, or physical contact;
• sexual comments, jokes, or “banter”;
• questions about someone’s sex life, relationship status, or body;
• repeated requests for dates or sexual favours;
• lewd staring or gestures;
• sharing sexual content (images, memes, videos) at work or in work group chats;
• sending inappropriate messages by text, email, Slack/Teams, or social media; and
• displaying sexual images or posters in the workplace.

Sexual Harassment Can Happen Online And After Hours

One of the biggest shifts for workplaces is that harassment risk doesn’t stop at the office door.

Sexual harassment can happen:

• in DMs between colleagues;
• in work WhatsApp groups;
• during work travel;
• at staff parties and end-of-year events;
• at conferences and client functions; and
• in remote work environments (including video calls and internal chat tools).

A helpful rule of thumb is: if there’s a meaningful connection to work, you should treat it as a workplace issue and respond appropriately.

It’s Not Only About Intent

Many complaints arise where the person engaging in the conduct didn’t “mean anything by it”. But legally, sexual harassment is not excused just because someone claims it was a joke, a compliment, or harmless flirting.

From a business perspective, the safer approach is to set clear expectations about behaviour, train your team, and respond early when issues are raised.

What Are Your Obligations As An Employer Or Business Owner?

If you employ staff (or engage contractors who operate in your workplace), you should treat sexual harassment as a core compliance issue - not just an HR issue.

Broadly, your obligations include taking reasonable steps to:

• provide a safe workplace (including psychologically safe);
• help prevent sexual harassment and other unlawful workplace conduct; and
• respond properly when issues are raised.

This is where many businesses get caught out: doing nothing (or doing the bare minimum) can increase your exposure if something goes wrong.

Workplace Culture Is A Legal Risk Issue

In practical terms, culture shows up in legal disputes as evidence of what you tolerated, what you trained people on, and how you handled prior issues.

For example, if your business has:

• no written policies;
• no training;
• a pattern of ignoring complaints;
• no clear reporting channels; or
• leaders who participate in inappropriate “banter”

…then it becomes much harder to argue you took reasonable steps to prevent harassment.

Contracts And Policies Support Your Compliance

From the small business perspective, your best protection is having the right documentation in place and actually using it.

Depending on your business, that often includes:

• an Employment Contract that clearly sets expectations and allows you to manage misconduct;
• a clear Workplace Policy covering discrimination, harassment, bullying, complaint handling, and consequences; and
• a centralised Staff Handbook that makes behavioural expectations easy to access and enforce.

These documents won’t solve everything on their own - but without them, you’re often trying to manage serious issues with unclear rules and inconsistent processes.

How Do You Prevent Sexual Harassment In Your Business?

If you’re asking whether sexual harassment is against the law, chances are you’re also thinking: “What do I need to do to keep my business compliant?”

The strongest approach is prevention-first. Prevention protects your team and also reduces the likelihood of costly disputes later.

1. Set Clear Standards (In Writing)

At a minimum, you should have written standards explaining:

• what behaviour is not acceptable;
• that sexual harassment is unlawful and will not be tolerated;
• how people can report issues (including confidentially);
• how complaints will be handled (procedurally); and
• what outcomes may follow (warnings, training, termination, etc.).

This is especially important in small teams, where people sometimes assume “we’re like family” means policies aren’t needed. In reality, small workplaces often need clarity most - because blurred boundaries create risk.

2. Train Your Team (And Your Managers)

Policies are a great start, but training is what makes them real.

Training should be practical and relevant to your workplace. For example:

• what counts as sexual harassment (including examples);
• how to raise concerns;
• how managers should respond if they observe inappropriate conduct; and
• what to do if the complaint involves a supervisor or owner.

If you have managers, supervisors, or team leaders, they should receive additional guidance. They’re often the first point of contact and their response can significantly impact legal exposure.

3. Make Reporting Safe And Simple

One of the most common mistakes we see is having only one reporting pathway - especially where that pathway is “tell your manager”, and the manager is the problem.

Consider having multiple reporting options, such as:

• a direct contact person (e.g. HR, operations manager, director);
• an alternative person if the complaint involves the direct manager;
• a written email channel; and
• clear information about confidentiality (and its limits).

The easier it is to report early, the more likely issues can be addressed before they escalate.

4. Be Careful With Surveillance And Evidence Collection

Sometimes employers consider CCTV, recording conversations, or reviewing messages to “prove” what happened.

Be cautious here. Evidence gathering can be important, but surveillance and recording are regulated and mistakes can create a second legal problem while you’re trying to solve the first.

If your workplace uses cameras or monitoring, make sure your approach is consistent with privacy expectations and workplace rules - including the guidance around workplace camera laws.

What Should You Do If A Complaint Is Made?

Even with the best prevention, complaints can still happen - and how you respond can make a major difference.

Your goals as an employer should be to:

• respond quickly and respectfully;
• protect the complainant and others from further risk;
• follow a fair process for everyone involved; and
• document what you did and why.

Step 1: Take It Seriously And Act Promptly

It’s rarely a good idea to “wait and see” if things blow over.

When a complaint is raised:

• acknowledge it in writing;
• explain the next steps;
• ask what support the person needs (where appropriate); and
• consider immediate risk controls (like changing rosters or reporting lines).

Be careful not to make assumptions about the outcome early. Your job is to manage the process, not jump to conclusions.

Step 2: Follow A Procedural Fairness Approach

Employers often ask whether they can just dismiss someone immediately if the allegation sounds serious.

Sometimes summary dismissal can be an option, but getting the process wrong can expose you to claims (even if the underlying allegation is true). A fair process generally involves:

• explaining the allegations clearly to the respondent;
• giving them a genuine opportunity to respond;
• considering evidence (messages, witnesses, documents);
• making findings reasonably open to you on the material; and
• deciding outcomes consistently and proportionately.

If you’re unsure how to structure this, it’s worth speaking with an employment lawyer early, before decisions are made.

Step 3: Manage Confidentiality And Workplace Gossip

In a small business, confidentiality is hard - but still essential.

Limit discussion to people who genuinely need to know (for example, a director, HR, an investigator, or a manager implementing interim measures). Make it clear that retaliation or victimisation is not acceptable.

Step 4: Be Mindful Of Related Legal Risks (Like Interview Questions And Retaliation)

Sometimes complaints arise alongside other legal issues, such as inappropriate recruitment practices or “personal” questions being asked at work.

For example, questions about relationships, pregnancy plans, or sexual history can cause significant risk - both culturally and legally. This often overlaps with illegal interview questions and broader discrimination concerns.

Also, be cautious about changing someone’s hours, duties, or roster after they complain. Even if you’re trying to separate people for safety, you should document your reasons and apply changes carefully to avoid allegations of retaliation.

Step 5: Document Everything

Good documentation protects everyone.

Keep records of:

• the complaint (date, details, who received it);
• immediate actions taken to manage risk;
• meeting notes and correspondence;
• evidence reviewed and findings made; and
• outcomes, disciplinary actions, and follow-up steps.

If the matter escalates to an external complaint or legal process, contemporaneous records can be critical.

Key Takeaways

• Is sexual harassment against the law? Yes - sexual harassment is unlawful in Australia, and workplace-related conduct (including online and after-hours conduct) can expose your business to legal risk.
• Sexual harassment can include jokes, messages, repeated requests, inappropriate questions, and other unwelcome conduct - not only physical behaviour.
• As an employer, you may be responsible for the conduct of employees and other workplace participants where the business hasn’t taken reasonable steps to prevent and respond.
• Clear documentation (like an Employment Contract, policies, and a Staff Handbook) helps you set standards and manage complaints consistently.
• If a complaint is raised, respond promptly, follow a fair process, protect confidentiality, and document every step.
• Getting advice early can help you manage risk, avoid escalation, and take action confidently and lawfully.

This article is general information only and doesn’t take into account your specific circumstances. Workplace laws and processes can vary by state/territory and industry, so it’s a good idea to get legal advice for your situation.

If you’d like help setting up your workplace policies, employment contracts, or complaint handling processes, reach out to Sprintlaw on 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.