How sexual harassment protections in Australia have evolved through respect at work laws

Sexual harassment can occur in any industry at any time, so it’s important to be mindful of how we treat each other in the workplace.

In fact, a 2020 National Inquiry Report by Respect@Work outlined that workplace sexual harassment is “prevalent and pervasive” and occurs at every level of Australian workplaces.

In this blog, we’ll explore the definition of work-related sexual harassment, the evolution of Respect at Work, new employer obligations, and how recent laws are ensuring equal access to justice for victims of sexual harassment.

What is work-related sexual harassment?

Work-related sexual harassment is unwanted or unwelcome sexual behaviour which makes a person feel offended, humiliated, or intimidated that occurs in the course of employment, in workplaces, or at work-related events.

This behaviour can be a one-off incident or a continuing pattern of behaviour involves unwanted or unwelcome physical and non-physical behaviours, including:

• Touching
• Staring or leering
• Suggestive comments
• Unwanted invitations to go out on dates
• Requests for sex
• Intrusive questions about a person’s private life or body
• Use of explicit pictures, posters, emails, or social media activity

The evolution of respect at work

In 2021, the Federal Government strengthened protections against sexual harassment through introducing the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. Essentially, the Act provides workers with stronger legal protections and greater empowerment to seek justice for workplace sexual harassment.

The 2021 Act built on its 2009 predecessor in some important ways:

• Clearly defined phrases such as “sexually harass” and “sexually harassed at work”.
• Expanded the anti-bullying jurisdiction of the Fair Work Commission.
• Clarified that sexual harassment, in relation to an employee’s employment agreement, can be a valid reason for dismissal.

Employer’s New Obligations

While sexual harassment legislation largely protects employees, additional provisions in recent years have imposed certain obligations on employers. For example, in 2022, the Respect at Work Act 2022 outlined that employers and business owners must take reasonable measures to eliminate, or at the very least minimise, discriminatory conduct in the workplace, including sexual harassment.

Equal Access and Costs

Financial strain and economic burdens are often listed as barriers to pursuing sexual harassment claims among workers. That’s why in 2024, the Federal Parliament passed the Australian Human Rights Commission Amendment (Costs Protection) Bill 2023, which inserted a new “equal access” cost protection for applications in federal unlawful discrimination proceedings, including for sexual harassment.

This equal access cost protection applies to all proceedings commenced under the federal anti-discrimination laws and applies to proceedings commenced in the Federal Court of Australia, Federal Circuit, and Family Court of Australia. Likewise, it also applies to appeals to the High Court.

In other words, if you win your case in one of these courts, the court will typically order the other party to pay your costs. However, if the court decides that you caused some of the costs through your own actions, the other party might not have to pay those costs.

While these changes are widely welcomed and signal a positive direction for victims of work-related sexual harassment accessing justice, there is so much more to be done to ensure the safety of all people at work in all industries.

Australian Human Rights Commission (AHRC) Sex Discrimination Commissioner, Kate Jenkins, once said that “sexual harassment is not inevitable. It is not acceptable. It is preventable”. It’s vital that we keeping pushing for more reforms to ensure all Australian workplaces are safe and free from sexual harassment.