The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) expanded the role of the Fair Work Ombudsman (FWO) in addressing sexual harassment in connection with work.
Legislative provisions
Sexual harassment is defined as:
an unwelcome sexual advance, or an unwelcome request for sexual favours; or
other unwelcome conduct of a sexual nature in relation to the person harassed
in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.
Section 527D of the Fair Work Act 2009 (Cth) (FW Act) provides that a person must not sexually harass another person who is a worker, a potential worker or a person conducting a business.
Section 527E of the Fair Work Act 2009 (Cth) provides that if an employee or agent of a person (the principal) does an act that contravenes Section 527D, the principal is considered to have also done the act, unless the principal can show they took all reasonable steps to prevent the contravention of Section 527D.
Note: A worker includes an employee, a contractor or subcontractor, an outworker, an apprentice or trainee, a work experience student and a volunteer. A person conducting a business or undertaking includes a self-employed person or sole trader.
Examples of sexual harassment conduct
Sexual harassment conduct includes a range of actions and behaviours and does not have to be repeated or continuous. The conduct can be conducted by any person, including: a fellow worker, a manager, the owner or a customer or client.
Examples of sexual harassment can include:
inappropriate physical contact
a suggestive comment or joke
a sexually explicit picture or poster
a request for sex
an insult or taunt of a sexual nature and
a sexually explicit email, text message, or other electronic message.
The role of the FWO
The FWO is the national workplace regulator. They can deal with disputes about sexual harassment in connection with work, for alleged sexual harassment conduct that occurred after 6 March 2023, including:
investigating the individual harasser for the alleged sexual harassment (Section 527D of FW Act)
investigating an employer (vicarious liability) to determine if they had taken all reasonable steps to prevent the individual harasser from doing acts that would constitute sexual harassment (Section 527E of FW Act)
taking action when someone does not comply with a Fair Work Commission stop sexual harassment order (Section 527K of FW Act).
Report a workplace issue
There are several ways you can report concerns about workplace sexual harassment to the FWO. These include:
