“Everyone” in the definition within the Fair Work Act 2009 includes current and future:

• Employees;
• Contractors or subcontractors;
• Business owners regardless of whether they work in the business;
• Outworkers;
• Apprentices and trainees;
• Interns;
• Work experience students;
• Volunteers; and
• Person conducting a business or undertaking (this includes sole traders and a self-employed person.

Since 6 March 2023, there has been some legislative changes which expanded the scope of this law to apply to any form of sexual harassment ‘in connection with work’. This means that any of the persons described above must also not be sexually harassed by another worker, customer, client or a supplier of the business, or a visitor to the workplace.

This expanded scope is not retrospective, meaning different levels of protection will apply if sexual harassment occurred before or after this date.

If you have been subject to workplace sexual harassment, we can help you draft and file a complaint. Different time limits will apply depending on which agency the application is lodged to, but we can give you more tailored advice depending on your circumstances.

For clarity the Fair Work Commission identifies that behaviours which may be perceived as sexual harassment can include:

• inappropriate physical contact;
• intrusive questions about a person’s private life or physical appearance;
• sharing or threatening to share intimate images or film without consent;
• unwelcome touching, hugging, cornering or kissing;
• repeated or inappropriate invitations to go out on dates;
• sexually suggestive comments or jokes that offend or intimidate;
• requests or pressure for sex or other sexual acts;
• sexually explicit pictures, posters or gifts;
• actual or attempted rape or sexual assault;
• being followed, watched or someone loitering (hanging around);
• sexually explicit comments made in person or in writing, or indecent messages (SMS, social media), phone calls or emails – including the use of emojis with sexual connotations;
• sexual gestures, indecent exposure or inappropriate display of the body;
• unwelcome conduct of a sexual nature that occurs online or via some form of technology – including in virtual meetings;
• inappropriate staring or leering; and
• repeated or inappropriate advances on email or other online social technologies.

There is also a positive duty for employers and principals to ensure sexual harassment in connection with work does not occur. This means that employers must eliminate and minimise risks of sexual harassment, as is reasonably practicable, by:

• Identifying, assessing and managing risks of sexual harassment;
• Consulting with workers and provide education and training on sexual harassment prevention;
• Provide adequate workers supervision to minimise risk of sexual harassment;
• Establish processes so workers can report without fear, shame or victim blaming;
• Take appropriate action to respond and manage incidents; and
• Exercise due diligence to ensure everyone within the workplace complies with the policy against sexual harassment.

Failure to do so employers and principals may be held vicariously liable under the Sex Discrimination Act 1984, but there is an exception if the employer or principal can prove that they have taken all reasonable steps to prevent any sexual harassment from occurring.

For us to best assist you and accurately inform you on how workplace sexual harassment law applies to you, please get in contact with us – your first phone call will always be free.