It is unlawful to sexually harass someone at work in all Australian jurisdictions.
An employee wanting to take legal action regarding sexual harassment must determine whether it is best to do so under the law in their State or Territory, or under the Commonwealth law. This article will briefly explains some of the differences between States, Territories and Commonwealth law.
Definitions of sexual harassment
The most common definition of sexual harassment is unwelcome conduct of a sexual nature, that a reasonable person would anticipate to cause offence, humiliation or intimidation. This definition is used in Commonwealth, New South Wales, Victoria, Queensland, Tasmania, South Australia and ACT.
The definition of sexual harassment differs in Western Australia. Unwelcome conduct of a sexual nature will only amount to sexual harassment if the person subjected to the conduct:
- has a reasonable belief that rejecting or objecting to the conduct would disadvantage her/him in her/his employment; or
- is at a disadvantage in her/his employment because she/he rejected or objected to the conduct.
The Northern Territory uses both definitions; it defines sexual harassment as unwelcome conduct of a sexual nature:
- that a reasonable person would anticipate to cause offence, humiliation or intimidation; or
- that the person subjected to the conduct is disadvantaged as a result of rejecting or objecting, or has reasonable belief that rejection or objection would disadvantage her/him in her/his employment.
Making a complaint
Employees have the option to make a complaint under the legislation applicable in their state or territory law, or under Commonwealth law.
A significant difference between the State or Territory laws and Commonwealth law is the time limit for making the complaint.
Under Commonwealth law, an employee can make a complaint to the Australian Human Rights Commission within 6 months of the sexual harassment occurring. This is the shortest time limit imposed.
Complaints made under State legislation have a longer time limit available for an individual to make an complaint.
The table below shows the time limits and complaint body in the States or Territories.
- New South Wales, 12 months, Anti-Discrimination Board
- Victoria, 12 months, Victorian Equal Opportunity and Human Rights Commission
- Queensland, 12 months, Anti-Discrimination Commission
- Tasmania, 12 months, Anti-Discrimination Commissioner (known as Equal Opportunity Tasmania)
- South Australia, 12 months, Equal Opportunity Commission
- Western Australia, 12 months, Equal Opportunity Commission
- Australian Capital Territory, 12 months, ACT Human Rights Commission
- Northern Territory, 12 months, Anti-Discrimination Commission
In certain circumstances, anti-discrimination legislation makes an employer legally responsible for sexual harassment performed by one if their employees; this is known as ‘vicarious liability’. For an employer to be vicariously liable there must be a connection between the sexual harassment and the employment of the employee engaging in sexual harassment. Even where there is a connection, an employer that takes reasonable steps to prevent sexual harassment will not be vicariously liable.
Often the sexual harassment will be connected to the harassing employee’s employment because it occurred in the workplace and during working hours. However, sexual harassment that occurs out of the workplace or outside working hours may still be connected to the harassing employee’s employment.
In a recent case, Oak Hotels & Resorts Limited v Knauer  QCA 359, the employer of an after-hours hotel caretaker was vicariously liable for his actions. The caretaker was employed to provide on-call care-taking services between 10:00pm and 6:00am each day. He indecently assaulted a colleague at approximately 5:00am, in the hotel where he worked. There was sufficient connection between the caretaker’s employment and his conduct because it occurred when he was on-call, even though he was not responding to a call, incident or issue, and therefore not working at the time.
Only South Australian law sets out the reasonable steps an employer must take to avoid vicarious liability. These are: implement a workplace policy prohibits sexual harassment; educated employees about the policy; investigated allegations of sexual harassment and take appropriate disciplinary action.
Sometimes, these steps will often be enough for an employer to avoid vicarious liability in other jurisdictions. However, in many cases employees have successfully argued that their employer should have done more.
This publication is general information only and is not not intended to be used as legal advice or a substitute for legal advice. If If you have been sexually harassed at work and want assistance, please contact the Workplace Advice and Support team by calling 1300 27 37 62 or emailing firstname.lastname@example.org.
About the Author – Sophie Vassallo
Sophie Vassallo is a National Industrial Officer within the Workplace Advice and Support team at Professionals Australia. She provides industrial advice to members with individual employment law matters.