Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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If you run a small business or startup, you’re probably juggling hiring, customers, cashflow, and growth. But there’s one area that can’t sit on the “we’ll deal with it later” list: complying with Australia’s sexual harassment legislation.
In Australia, the legal landscape around sexual harassment at work has become more proactive and (in many ways) more employer-focused. That means it’s not just about responding when something goes wrong - it’s about making sure you’ve put real, practical measures in place to prevent issues in the first place.
This guide breaks down what Australian sexual harassment legislation means for you as an employer, what “good compliance” looks like day-to-day, and how to build policies and processes that actually work in a startup environment. This is general information only and isn’t legal advice - your obligations can vary depending on your business, industry, workforce and location.
What Does Sexual Harassment Legislation Require From Employers?
At a high level, Australia’s workplace sexual harassment laws are designed to keep workplaces safe, respectful, and free from unwanted sexual conduct. Key federal laws include the Sex Discrimination Act 1984 (Cth) (which prohibits sexual harassment and related conduct) and the Fair Work Act 2009 (Cth) (which includes protections that can apply to harassment-related issues, such as adverse action and stop sexual harassment orders). States and territories also have work health and safety laws that require employers to manage psychosocial risks, which can overlap with harassment prevention.
For employers, the key takeaway is that you can be legally responsible not only for your own conduct, but also for conduct between workers in your workplace (including managers, employees, contractors, interns, and in some settings, customers or clients).
While the legal detail can vary depending on your circumstances, most employer obligations in practice fall into a few predictable buckets:
- Prevention: putting measures in place to reduce the risk of sexual harassment occurring.
- Training and communication: making expectations clear and ensuring people understand boundaries, reporting options, and consequences.
- Responding appropriately: taking complaints seriously, acting promptly, and following a fair process.
- No victimisation: ensuring that anyone who raises a concern (or participates in a process) isn’t punished or disadvantaged for doing so.
It’s also important to recognise that “workplace” isn’t just your office. For many businesses, risk comes up during:
- work travel and conferences
- client events
- after-work drinks and team social events
- Slack/Teams messages and group chats
- remote work and video calls
If you’re thinking “we’re a small team, we’d never have this issue,” that’s a common assumption - and unfortunately, it’s one reason small businesses get caught off guard. Smaller teams can mean closer working relationships, blurred boundaries, and fewer formal processes.
What Counts As Sexual Harassment At Work (And What About “Grey Areas”)?
Sexual harassment is generally about unwelcome conduct of a sexual nature that a reasonable person would anticipate might offend, humiliate, or intimidate someone. The “unwelcome” part is crucial: it’s about how the conduct is received, not the intent behind it.
In a business setting, sexual harassment can include obvious behaviour (like unwanted touching), but it can also include conduct that some people mistakenly treat as “banter” or “just jokes”. For example:
- sexual jokes or comments (even if “everyone laughed”)
- asking intrusive questions about someone’s sex life
- repeatedly commenting on someone’s appearance in a sexualised way
- sharing sexual content, memes, or links in work chats
- unwanted flirting, pressure for dates, or “accidental” repeated physical contact
- displaying sexual images in the workplace
Does It Have To Happen In The Office?
No. Conduct can be workplace sexual harassment even if it occurs:
- at a work function
- at a client site
- in a work-related message thread
- during work travel
- in a private message between colleagues if the connection to work is present (for example, if it impacts the working relationship)
What About Consensual Relationships?
Workplace relationships aren’t automatically unlawful. But they are a risk area for employers, especially where there is:
- a power imbalance (manager/direct report)
- conflicts of interest
- perceived favouritism
- a relationship breakdown that leads to complaints or performance issues
This is where clear workplace policies and a practical conflict-management approach really matters.
The “Positive Duty” And Why Sexual Harassment Compliance Is More Proactive Now
A major shift in Australian sexual harassment legislation is the move toward proactive compliance. In other words: it’s not enough to wait for a complaint and then react. Under the federal “positive duty” in the Sex Discrimination Act 1984 (Cth), many employers and persons conducting a business or undertaking (PCBUs) are expected to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, hostile workplace environments and victimisation.
From a practical perspective, the “positive duty” idea means you should be able to show you have done more than just “have a policy somewhere”. If something goes wrong, investigators and decision-makers often look at whether your business had genuine systems in place, such as:
- a clear and accessible harassment and bullying policy
- training that actually happened (not just onboarding paperwork)
- reporting channels people trust and understand
- a process for prompt and fair investigations
- leadership behaviour that sets the standard
It’s also worth knowing that the Australian Human Rights Commission (AHRC) has an enforcement role in relation to the positive duty, including the ability to inquire into compliance and (where appropriate) take regulatory steps. Separately, the Fair Work Commission can also deal with certain sexual harassment disputes and orders under the Fair Work Act.
If you’re a startup, this is good news in a way. Startups are often agile and able to set culture early. You can bake respectful conduct into your values, your onboarding, and your leadership habits before the team grows.
How To Build A Practical Sexual Harassment Compliance Plan (That Your Team Will Actually Follow)
Compliance is much easier when it’s operational. That means you want a plan that fits your team size, risk profile, and day-to-day reality - not a 40-page policy that no one reads.
1) Set Standards From Day One (Even If You’re Only Hiring Your First Employee)
Early-stage teams often hire quickly. But it’s worth slowing down long enough to set expectations clearly in writing.
At a minimum, your employment documentation should align with your culture and behavioural expectations. For example, your Employment Contract can help reinforce that workplace conduct expectations are part of the role, and that policy breaches can lead to disciplinary action (handled fairly and consistently).
2) Put The Right Policies In Place (And Make Them Easy To Use)
Most businesses benefit from having a small suite of policies that work together, rather than one policy trying to cover everything. In practice, that usually includes:
- Workplace conduct / anti-harassment policy: defines unacceptable conduct and reporting pathways
- Investigation and disciplinary process: explains how you handle complaints fairly
- Privacy and confidentiality expectations: so matters are not discussed casually or retaliated over
If you’re building out a broader set of workplace rules, a Staff Handbook is often the practical place to house policies in a way that is accessible and consistent.
3) Train Your Team (And Don’t Forget Managers)
Training doesn’t have to be complicated, but it should be real.
For a small business, “real training” can look like:
- a structured onboarding conversation about conduct expectations
- short refreshers every 6–12 months
- manager training on how to receive complaints and escalate appropriately
- scenario-based discussions (for example, messaging boundaries, client events, alcohol-related risks)
A common mistake is assuming that seniority equals competence in handling complaints. In reality, managers are often the first person someone speaks to - and the way that first conversation is handled can determine whether the business resolves the issue quickly or ends up in a much bigger dispute.
4) Make Reporting Safe And Clear
If someone doesn’t feel safe reporting, you may not hear about problems until they escalate.
Consider offering multiple reporting options, for example:
- a direct manager (where appropriate)
- an alternative manager
- HR (internal or outsourced)
- a founder or director
- an external contact point (useful for small teams to reduce fear of bias)
Whatever model you choose, it should be clearly communicated and written in your policies.
5) Document What You Do (Not Just What You Say)
One of the simplest and strongest risk controls is documentation. Not “paperwork for the sake of paperwork,” but a clear record of decisions and actions.
In the event of a complaint, good records can help show you acted promptly, fairly, and consistently.
Handling Complaints And Investigations: A Step-By-Step Employer Approach
Even the best culture and prevention measures can’t remove risk completely. What matters next is how you respond.
Here’s a practical complaint-handling framework many employers follow.
Step 1: Take The Complaint Seriously And Act Promptly
Delays can worsen the impact on the affected person, increase conflict in the team, and make evidence harder to gather. Respond quickly, even if it’s simply to acknowledge the concern and explain next steps.
Step 2: Consider Immediate Safety And Workplace Adjustments
Sometimes you may need temporary measures while you assess the situation, such as:
- adjusting reporting lines
- moving work locations or shifts
- directing no-contact between parties (where appropriate)
- temporary stand down in serious situations (handled carefully)
If you are considering standing someone down, make sure you approach it lawfully and consistently with your contracts and policies. In more serious or sensitive cases, it can help to get advice early - for example, where you are thinking about standing down an employee pending investigation.
Step 3: Follow A Fair Process
A fair process generally means:
- gathering relevant information (not relying on rumours)
- giving the respondent a chance to respond to allegations
- avoiding conflicts of interest
- keeping confidentiality as tight as possible
- making findings based on evidence
- documenting outcomes
Even if you’re confident misconduct occurred, shortcuts can create legal risk. The goal is a process that is both supportive and procedurally fair.
Step 4: Decide On Outcomes And Take Action
Outcomes can vary based on what the investigation finds, but may include:
- training or coaching
- a formal warning
- role adjustments
- termination (in serious cases)
- broader team actions (culture resets, manager training, policy updates)
If termination is on the table, it’s worth checking you are meeting minimum notice and process requirements. Many employers also consider whether payment in lieu of notice is appropriate, depending on the contract terms and the circumstances.
Step 5: Close The Loop (And Watch For Victimisation)
After an outcome is reached, keep an eye on team dynamics. A common risk is subtle victimisation - changes in shifts, exclusion from meetings, negative comments, or reduced work opportunities after someone raised a concern.
Even where the matter is “resolved,” your ongoing duty is to keep the workplace safe and respectful.
Key Legal Documents Employers Should Have In Place
Strong documentation doesn’t replace good culture - but it does make your expectations clear, supports consistent decision-making, and helps you act faster when issues arise.
Depending on your team and operations, the documents you may want to consider include:
- Employment Contract: sets the legal foundation of the employment relationship, including conduct expectations and disciplinary pathways (see Employment Contract).
- Workplace Policies / Staff Handbook: consolidates your behaviour standards, reporting options, and investigation approach in one accessible place (often done via a Staff Handbook).
- Workplace Surveillance / Monitoring Settings: if you use cameras, monitoring tools, or recording technology, make sure this aligns with privacy expectations and applicable state laws (this often intersects with workplace culture and complaint evidence).
- Privacy Documentation: if you collect personal information (including employee records, recruitment data, or website enquiries), your external-facing privacy position should be clear, usually via a Privacy Policy.
- Company Governance Documents: for startups operating through a company, internal governance documents can help clarify decision-making and director responsibilities, including adoption of a Company Constitution where appropriate.
Not every business needs every document on day one. But as soon as you have employees (or regular contractors working in your business), it’s worth making sure your foundations are properly set up and consistent across contracts and policies.
Key Takeaways
- Australian law increasingly expects employers to take active steps to prevent and respond to workplace sexual harassment, not just react after a complaint (including under the federal “positive duty”).
- Sexual harassment risk can arise in offices, remote work, work chats, client sites, travel, and social events - so your policies should reflect how your team actually works.
- A practical compliance plan includes clear standards, workable policies, regular training (especially for managers), trusted reporting channels, and good documentation.
- When a complaint is raised, acting promptly and following a fair process helps protect your team and reduces legal risk for your business.
- The right legal documents - including an Employment Contract and a Staff Handbook - make expectations clear and support consistent, lawful decision-making.
If you’d like help reviewing your workplace policies, employment contracts, or overall approach to sexual harassment compliance, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
