Sexual Harassment Legislation in Australia: What Employers Should Do

Creating a safe, respectful workplace isn’t just the right thing to do - it’s a legal requirement in Australia. Recent changes have strengthened sexual harassment legislation and placed a clear, proactive “positive duty” on employers to prevent unlawful conduct before it happens.

If you run a small business, you’re now expected to take reasonable and proportionate steps to eliminate sexual harassment, hostile work environments and related victimisation as far as possible. It doesn’t matter if your team is two people or twenty - the duty still applies.

In this guide, we’ll break down what the current laws require, who’s covered, what “reasonable steps” look like in practice, and how you can set up simple systems to comply and protect your people and your business.

What Does Australian Sexual Harassment Legislation Require?

Several laws work together to prevent and address sexual harassment at work in Australia. As an employer, you should be across the core obligations below.

1) Positive Duty Under Federal Discrimination Law

Under the Sex Discrimination Act 1984 (Cth), as amended by the Respect@Work reforms, employers and PCBUs (persons conducting a business or undertaking) have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible:

• Sexual harassment
• Sex-based harassment
• Hostile workplace environments on the ground of sex
• Victimisation related to these matters

This duty is proactive. It’s not enough to respond after a complaint - you must actively prevent harassment through policies, training, leadership, risk management and appropriate response systems.

2) Fair Work Act Prohibitions And FWC Dispute Powers

The Fair Work Act 2009 (Cth) now expressly prohibits sexual harassment “in connection with work.” The Fair Work Commission (FWC) can deal with disputes (including by conciliation and, if agreed, arbitration) and make “stop sexual harassment” orders. Employers can also be vicariously liable unless they took all reasonable steps to prevent the conduct.

3) Work Health And Safety (WHS) Duties

Sexual harassment is a psychosocial hazard. WHS laws require you to identify, assess and control psychosocial risks (like sexual harassment, bullying and hostility) so far as is reasonably practicable. This includes consulting workers, implementing controls, and regularly reviewing them.

4) Vicarious Liability

Under discrimination law, employers are generally responsible for unlawful conduct by employees or agents, unless the employer can show they took reasonable steps to prevent it. Having a policy that no one sees or uses won’t be enough. You need a living framework that your team understands and follows.

Who Is Covered And Where Does The Duty Apply?

Modern sexual harassment legislation deliberately casts a wide net to protect more people in more situations connected with work.

• “Worker” includes employees, contractors, subcontractors, labour hire workers, apprentices, trainees, volunteers and gig workers.
• Protections apply “in connection with work” - this can include client sites, work-related travel, conferences, work functions and online communications (email, messaging apps, collaboration tools and social media when used for work).
• Third-party conduct matters too. For example, you may need to manage risks involving customers, clients or suppliers who interact with your team.

In short, if it’s connected to your business, you should assume your obligations apply.

What Counts As “Reasonable And Proportionate” Steps For Small Businesses?

The law recognises that smaller businesses have different resources. “Reasonable and proportionate” considers your size, nature of operations and risk profile. That said, there are common-sense building blocks every small business can put in place.

1) Set Clear Standards (Policies And Codes)

Put in place a concise, plain-English Workplace Policy (or a short suite of policies) that covers sexual harassment, sex-based harassment, discrimination, victimisation, complaint pathways, and bystander expectations. Make it accessible and easy to follow - one to five pages is fine if it’s clear and complete.

Many small businesses package conduct, grievance and WHS expectations in a practical Staff Handbook that’s shared at induction and refreshed annually.

2) Train Your Team And Leaders

Training doesn’t have to be complex. Short, regular, scenario-based sessions (15-30 minutes) explaining what sexual harassment is, how to speak up, and how you’ll respond can go a long way. Keep a record of attendance and topics covered.

It’s also wise to upskill managers on receiving complaints, procedural fairness and confidentiality. See our guide on training employees to understand when training becomes a legal necessity and how to structure it.

3) Build Complaints And Early-Intervention Pathways

Offer multiple reporting channels (e.g. a manager, HR contact, or owner). Allow informal and formal options, and make it clear workers can go to the FWC, AHRC or WHS regulator if needed. Ensure your complaint handling respects privacy - your Privacy Policy should explain how you’ll collect, use and store sensitive information in an investigation.

4) Run Fair, Trauma-Informed Processes

When a concern arises, act promptly and follow a fair process: assess risk, implement interim controls if needed (e.g. separate shifts), gather information, allow both sides to respond, and document your findings and actions. If performance or conduct issues are involved, align your approach with a robust performance management process.

5) Lead The Culture

Leadership behaviour is powerful. Make it clear zero tolerance means exactly that - even “low-level” conduct like sexual jokes, repeated comments on appearance or unwanted messages can create a hostile environment. Recognise good behaviour publicly and intervene early when standards slip.

6) Manage Psychosocial Risk Like Any Other WHS Risk

Document a simple risk assessment for psychosocial hazards relevant to your workplace (e.g. lone work with customers, late-night service, power imbalances, alcohol at events). Identify controls such as supervision, buddy systems, alcohol limits at functions, client escalation protocols and incident debriefs. Review these controls periodically and after any incident.

Key Documents To Support Compliance (And Reduce Risk)

The right documents help you set expectations, respond consistently and show regulators you’ve taken reasonable steps. At minimum, consider:

• Employment Contract: Clear terms give you a foundation to manage conduct and performance and can reference your policies. Use a tailored Employment Contract for full-time and part-time staff, and a suitable contractor agreement for non-employees.
• Workplace Policy: A targeted policy covering sexual harassment, discrimination, complaints and bystander action. Start with a core Workplace Policy and build from there.
• Staff Handbook: Brings key conduct, safety and grievance procedures together so staff have one go-to resource. A practical Staff Handbook also helps with onboarding.
• Privacy Policy: Explains how you manage personal and sensitive information in complaints and investigations. Ensure your public-facing Privacy Policy aligns with your internal practices.
• Whistleblower Policy (where applicable): If your company meets the Corporations Act thresholds, a Whistleblower Policy may be required and can complement your speak-up channels.
• Investigation Templates: Intake form, interview plan, decision letter and outcome templates help you act consistently and fairly (and reduce delay).

Your documents should match how your business actually operates. If you have remote staff or customer-facing teams, tailor examples and processes to those realities.

How To Respond If A Complaint Arises

Despite best efforts, issues can still occur. A calm, structured response protects the parties and your business.

Step 1: Prioritise Safety And Confidentiality

Thank the person for speaking up, reassure them about next steps, and assess immediate risks. Consider interim measures such as rostering changes or separating parties. Keep information on a need-to-know basis.

Step 2: Choose A Proportionate Process

For very low-level matters, early intervention or facilitated conversation may resolve the issue quickly. For more serious allegations, a formal investigation is appropriate. Where conflict and conduct overlap, anchor your approach to your performance management process and ensure procedural fairness.

Step 3: Document, Decide, Follow Up

Record what you did and why. Make a finding on the balance of probabilities (more likely than not) and take reasonable action (e.g. training, warnings, redeployment, termination in serious cases). Provide outcome updates to the complainant and respondent, and review your risk controls to prevent recurrence.

If a claim is lodged externally (e.g. FWC, AHRC), respond promptly and seek advice. Our team assists employers dealing with workplace harassment and discrimination claims.

Frequently Asked Questions For Small Businesses

Do I Need Policies If I Only Have A Few Employees?

Yes. The positive duty applies regardless of size. For very small teams, concise policies and short training are usually reasonable and proportionate - but they still need to exist, be communicated and be used in practice.

Is A One-Off “Awareness Session” Enough?

Unlikely. Regulators expect ongoing, regular reinforcement. Annual refreshers, new starter onboarding, toolbox talks for frontline teams and leadership check-ins demonstrate you’re taking steps over time. Practical, scenario-based content beats legal jargon every time.

What If The Harasser Is A Customer Or Supplier?

You still have a duty to manage the risk. Set expectations in client-facing service terms, train staff on de-escalation and incident reporting, and back your people if they need to end an interaction. Consider banning or escalating repeat offenders and documenting the steps you’ve taken.

Could I Be Liable If Staff Don’t Follow The Policy?

Possibly - unless you can show you took reasonable steps to implement, train, monitor and enforce your standards. Keep records of training, refreshers and the actions you take when issues arise. Reasonable steps are about effort and evidence.

How Does This Fit With Other Employment Obligations?

It all connects. Sexual harassment prevention sits alongside fair process, WHS, and good people management. When conduct and performance intersect, ensure your contracts, policies and processes work together so you can act lawfully and decisively. If you’re unsure, get tailored guidance before you take action.

Practical Compliance Checklist (Quick Start)

Here’s a simple, small-business-friendly checklist you can start on this week:

• Adopt or refresh a short, clear Workplace Policy covering sexual harassment, complaints and bystander expectations.
• Issue or update each team member’s Employment Contract and link it to your policies.
• Provide a 20-30 minute training session this month; schedule refreshers and keep attendance records (see our guide to training employees).
• Confirm multiple reporting channels and outline investigation steps in your Staff Handbook.
• Update your public-facing Privacy Policy to reflect how complaints data is handled.
• Complete a basic psychosocial risk assessment and record controls (e.g. event alcohol limits, after-hours supervision, client escalation rules).
• Set a diary reminder to review everything in 6-12 months or after any incident.

Key Takeaways

• Sexual harassment legislation in Australia imposes a proactive positive duty on employers to prevent harassment, hostility and victimisation as far as possible.
• The Fair Work Act, Sex Discrimination Act and WHS laws work together - you must manage psychosocial risks, have practical systems and act early.
• Reasonable steps for small businesses include a clear policy, regular training, simple complaint pathways, fair investigations and visible leadership.
• Tailored documents - including an Employment Contract, Workplace Policy, Staff Handbook and Privacy Policy - make compliance easier and reduce liability.
• If a complaint arises, prioritise safety and confidentiality, follow a fair process, document decisions and review your controls to prevent recurrence.
• Getting early advice can help you meet the positive duty, handle complaints properly and protect your business from claims.

If you’d like a consultation on your sexual harassment compliance framework for your small business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.