Sexual Harassment In The Workplace: Employer Responsibilities In Australia

Sexual harassment harms people, damages team culture and productivity, and can seriously impact your business’ reputation. With recent reforms expanding protections and increasing duties on employers in Australia, this is an issue every business needs to manage proactively - not just reactively.

If you want to build a safe, respectful workplace and reduce legal risk, it’s essential to understand what counts as sexual harassment, how the law has changed, what your legal responsibilities are, and the practical steps you can take now to protect your people and your business.

In this guide, we explain the legal definition of sexual harassment, highlight the latest changes to Australian laws, outline your responsibilities as an employer, and set out a practical compliance plan - including what to do if a complaint lands on your desk, and which documents help you meet your obligations.

What Counts As Sexual Harassment At Work?

Under Australian law, sexual harassment occurs when a person makes an unwelcome sexual advance, requests sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to another person, in circumstances where a reasonable person would anticipate the other person would be offended, humiliated or intimidated.

Sexual harassment can be verbal, physical, visual or written - and it can occur in person or online, during work hours or at a work-related function. It can also happen between co-workers, managers, contractors, interns, labour hire workers, job applicants and others connected to your workplace.

Common Examples

• Sexually suggestive comments, jokes or innuendo
• Unwanted touching or close physical contact
• Staring, leering or repeated unwanted advances
• Displaying, sending or sharing sexual images, videos, memes or gifs
• Repeatedly asking someone out after they’ve said no
• Requests for sexual favours in exchange for workplace benefits
• Sexually explicit emails, texts or social media messages
• Sexual gestures, sounds or catcalling

Intent doesn’t decide legality - “it was just a joke” won’t prevent conduct from being unlawful. What matters is the effect of the behaviour and what a reasonable person would anticipate in the circumstances.

Hostile Work Environment vs Sexual Harassment

Recent reforms introduced a separate prohibition on conduct that creates a workplace environment that is hostile on the ground of sex. This is not the same as sexual harassment - it covers broader conduct (for example, sex-based hostility, offensive banter, or pervasive sexualised content) that makes the environment intimidating or humiliating. Both sexual harassment and a hostile environment are unlawful and need to be addressed.

Recent Legal Changes Employers Should Know

Two major sets of reforms have reshaped employer obligations and employee rights in Australia:

• Respect at Work reforms (2022): Amendments created a positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, sex-based harassment and hostile work environments. The Australian Human Rights Commission now has powers to inquire into and enforce this positive duty.
• Fair Work Act changes (2022): The Fair Work Act 2009 now expressly prohibits sexual harassment in connection with work. The Fair Work Commission (FWC) can make “stop sexual harassment” orders and deal with disputes, providing faster, practical remedies alongside other legal avenues.

Key Legal Features At A Glance

• Positive duty on employers: You must take proactive, reasonable and proportionate steps to prevent sexual harassment, sex-based harassment and hostile work environments - not just respond after incidents occur.
• Broad coverage: Protections extend to employees, contractors, labour hire workers, interns, volunteers in some cases, and job applicants - essentially anyone connected with your work.
• FWC stop orders: The FWC can order harassing conduct to stop and can set conditions to prevent future harassment. Breaching orders can lead to penalties.
• Vicarious liability: Employers can be held liable for unlawful conduct by workers unless they can show they took all reasonable steps to prevent it - robust policies, training, culture and enforcement matter.
• Protection from victimisation: It’s unlawful to disadvantage someone for making a complaint or participating in a process.

Your Legal Duties As An Employer

Your responsibilities now go beyond having a policy on the shelf. Regulators expect active, preventative measures that are tailored to the size, nature and risks of your business.

Core Responsibilities

• Prevention: Identify risks (e.g. isolated work, customer-facing roles, alcohol at events), implement controls, and address issues before harm occurs.
• Clear standards: Maintain a well-drafted, accessible Workplace Policy that defines unacceptable conduct, sets reporting options and explains how complaints are handled.
• Education and training: Provide regular training for all workers and targeted training for leaders and HR, with refreshers and onboarding coverage for new starters.
• Safe reporting: Offer multiple confidential channels (including anonymous options if possible), communicate that victimisation is unlawful, and ensure managers know how to respond.
• Fair processes: Investigate promptly and impartially, provide procedural fairness, protect privacy, and implement appropriate outcomes.
• Monitor and improve: Review culture, complaints data and training effectiveness; refine controls and policies as your business and the law evolve.

Your expectations should be reinforced in your Employment Contract and staff handbook so compliance is tied to performance and conduct standards.

Recruitment And Leadership

Prevention starts before day one. Train anyone involved in hiring to avoid discriminatory or illegal interview questions, use structured interviews, and communicate your standards clearly from the outset.

Leaders set the tone. Provide practical coaching to managers on early intervention, respectful feedback, and how to escalate concerns appropriately.

Wellbeing And Safety

Harassment is a psychosocial hazard. Consider wellbeing supports, EAP access where possible, and align your approach with your broader obligations regarding employee mental health and safety at work.

A Practical Compliance Plan: Step By Step

Here’s a simple, proactive plan you can adapt to your business.

1) Assess Your Risks

• Map roles, locations and scenarios with higher risk (e.g. after-hours events, customer interactions, remote or isolated work).
• Consult workers about risks and what helps them feel safe to speak up.

2) Update Your Policy Suite

• Ensure you have a current, plain-English anti-harassment policy inside a broader code of conduct or staff handbook.
• Set out clear definitions, examples, multiple reporting options, and complaint handling steps (including informal and formal pathways).
• Reference related standards (bullying, WHS, equal opportunity, social media and communications). If you’re refreshing policies, consider adding an Employee Privacy Handbook to help staff understand how personal and investigation data is handled.

3) Train Everyone (And Keep Records)

• Run regular training for all staff, plus specialised sessions for managers and HR on investigations and trauma-informed responses.
• Induct new starters promptly and schedule annual refreshers. Keep attendance and content records to demonstrate “reasonable steps”.

4) Strengthen Reporting And Early Intervention

• Offer multiple channels: HR contact, manager, alternate manager, email inbox, and an anonymous option if appropriate.
• Empower bystanders to speak up and give managers scripts for early, constructive conversations to prevent escalation.

5) Investigate Fairly And Act

• Triaging is key: address immediate safety, consider interim measures (e.g. rostering changes), and appoint an impartial investigator.
• Follow a consistent process: plan, collect information, interview parties and witnesses, assess against policy and law, make findings, and decide on outcomes.
• Where appropriate, consider temporary measures like alternative duties or, in some cases, standing down an employee pending investigation to preserve safety and integrity.

6) Close The Loop And Learn

• Provide outcome communications as appropriate (respecting privacy and confidentiality).
• Address any broader issues uncovered (e.g. team culture, supervision gaps) and feed learnings into your next risk review.

7) Document Everything

• Maintain policy versions, training records, risk assessments, and investigation files securely and confidentially.
• Good records help you prove you took “all reasonable steps” and meet your positive duty.

Handling Complaints And Investigations

Even with strong prevention, complaints can arise. A calm, consistent approach protects people and reduces legal risk.

Immediate Safety And Support

• Listen without judgement, thank the person for speaking up, and assess immediate risks.
• Offer support options (e.g. a support person, EAP, adjustments to work) and explain next steps clearly.

Process And Fairness

• Use your policy process. Avoid ad hoc approaches - consistency matters.
• Give all parties a fair chance to respond, maintain confidentiality, and avoid conflicts of interest in decision-making.

Outcomes And Follow-Up

• Outcomes might include training, behavioural expectations, warnings, separation of parties or, for serious breaches, disciplinary action up to termination (handled carefully to avoid unfair dismissal risks).
• Monitor the environment and ensure there is no victimisation. Revisit controls if similar issues recur - regulators expect continuous improvement.

The Role Of The FWC And Other Options

• If internal resolution fails or urgent protection is needed, a worker can seek a “stop sexual harassment” order through the Fair Work Commission.
• Other avenues may include complaints to the Australian Human Rights Commission or state/territory bodies, or court proceedings for compensation and penalties.

If a matter is complex or sensitive, it’s wise to speak with our employment lawyers early. Getting the process right up front can make a significant difference to outcomes and risk.

Key Documents To Put In Place

Having the right documents - kept current and actually used - is central to compliance and risk management. Consider the following as a baseline:

• Workplace Policy / Staff Handbook: Sets standards, defines sexual harassment and hostile environment conduct, explains reporting options and process, and prohibits victimisation. A clear, practical Workplace Policy is foundational.
• Employment Contract: Aligns conduct expectations, links to your policies, and sets out consequences for breaches. Use a well-drafted Employment Contract that supports policy enforcement.
• Complaints And Investigation Procedure: A step-by-step guide for managers and HR to ensure consistent, fair handling of issues and good record keeping.
• Training Materials And Records: Shows who attended, when, and what was covered - crucial evidence of “reasonable steps”.
• Communication Standards: Policies covering respectful communication and online conduct help set expectations for emails, messaging and social media; see broader guidance on workplace communication.

Depending on your size and risk profile, you may also implement manager guides, safety plans for events, and checklists for onboarding and leadership transitions so expectations are reinforced consistently across your business.

Key Takeaways

• Australian law now imposes a positive duty on employers to take reasonable and proportionate steps to prevent sexual harassment, sex-based harassment and hostile work environments.
• Protections are broad - covering employees, contractors, labour hire workers, interns, volunteers in some cases, and job applicants - and the Fair Work Commission can make “stop sexual harassment” orders.
• To show “all reasonable steps,” you need a current policy, targeted training, safe reporting channels, fair investigations, and regular reviews based on your specific risks.
• Intent doesn’t excuse conduct; both sexual harassment and hostile work environments are unlawful and must be addressed promptly and sensitively.
• Well-drafted documents (Workplace Policy, Employment Contract, complaints procedure) and strong records of training and actions are essential to compliance and risk management.
• If a complaint arises, act quickly, keep processes fair, consider interim safety measures, and seek legal guidance early for complex matters.

If you’d like a consultation on workplace sexual harassment and employer responsibilities - or help drafting or updating your policies and processes - reach out to us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.