Sexual harassment in the workplace is an issue that affects many employees across various industries. It can create a hostile and unsafe work environment, severely impacting the wellbeing of those subjected to it.
As an employee, it is essential to understand what constitutes sexual harassment, your legal rights and the protections available to you under Australian law. The Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) provide avenues for employees to seek recourse if they experience sexual harassment at work.
What is Sexual Harassment?
Under section 28A of the Sex Discrimination Act 1984 (Cth), sexual harassment occurs when a person engages in unwelcome conduct of a sexual nature that makes another person feel offended, humiliated or intimidated. It can include:
- Unwanted sexual advances
- Requests for sexual favours
- Inappropriate touching or physical contact
- Offensive jokes, comments or emails of a sexual nature
Sexual harassment is unlawful in any area of conduct, including the workplace. Employers are legally obligated to ensure that their employees are protected from harassment and discrimination.
Legal Protections Against Sexual Harassment
Several key pieces of legislation protect employees from sexual harassment in the workplace:
- Sex Discrimination Act 1984 (Cth)
This law provides employees with protection from sexual harassment and allows victims to lodge complaints with the Australian Human Rights Commission (AHRC). The AHRC can investigate complaints and attempt to resolve them through conciliation.
- Fair Work Act 2009 (Cth)
Under section 351, this Act prohibits sexual harassment as part of a broader prohibition on adverse action against employees based on protected attributes, such as sex.
- Work Health and Safety Act 2011 (Qld)
Employers have a duty of care to provide a safe work environment, free from risks to health and safety, including psychological harm caused by sexual harassment.
The text of section 28A of the Sex Discrimination Act 1984 (Cth) is as follows:
‘Meaning of sexual harassment
(1) For the purposes of this Act, a person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.’
This demonstrates that there is a clear definition in Australian law for what constitutes sexual harassment.
Action
If you are a victim of sexual harassment, it is important to take steps to protect yourself:
- Document the Harassment
Keep a detailed record of all incidents, including dates, times, what was said or done and any witnesses.
- Report the Harassment
Follow your workplace’s internal complaint procedures, which may involve reporting to HR or a designated manager.
- Seek External Help
If the internal process does not resolve the issue, consider lodging a formal complaint with the AHRC or the Fair Work Commission. They can provide assistance in resolving the issue and pursuing further legal action if necessary.
Seeking Advice
If you have experienced sexual harassment at work, Fox Piper can help. Our team of experienced employment lawyers can provide advice on how to handle the situation, from lodging an internal complaint to pursuing legal action. We can guide you through the process of making a complaint with the AHRC or the Fair Work Commission, ensuring that your rights are protected at every step.
Conclusion
Sexual harassment can have serious consequences for an employee’s wellbeing, but the law provides avenues for protection and recourse. Understanding your rights and the legal protections available can empower you to take action if necessary. If you have been subjected to sexual harassment in the workplace, seeking legal advice is a crucial step in protecting yourself and ensuring that your employer is held accountable.
