This document is part of the Prevention of Sexual Harassment in the Workplace resource.

Sexual harassment is a specific and serious form of harassment that is unlawful and prohibited by both Victorian and Commonwealth legislation.

It can also constitute a criminal offence.

3.1 Victorian legislation

Section 15 of the Equal Opportunity Act 2010 requires agencies to take reasonable and proportionate steps to eliminate sexual harassment in the workplace as far as possible.

Section 92 of the Equal Opportunity Act 2010 provides that a person sexually harasses another person:

  • if he or she makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person;
  • if he or she engages in any other unwelcome conduct of a sexual nature in relation to the other person; or
  • in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Section 93 of the Equal Opportunity Act 2010 prohibits sexual harassment in the workplace. This covers employers, employees, any person seeking employment, contract workers and volunteers.

Section 94 of the Equal Opportunity Act 2010 prohibits sexual harassment between people in common workplaces, defining a workplace as the place a person attends for the purpose of carrying out functions in relation to their employment. It does not need to be the person’s main place of business or employment.

Conduct of a ‘sexual nature’ includes:

  • subjecting a person to any act of physical intimacy;
  • making, verbally or in writing, any remark or statement with sexual connotations to a person or about a person in their presence;
  • making any gesture, action or comment of a sexual nature in a person’s presence.

3.2 Commonwealth legislation

Section 28A of the Sex Discrimination Act 1984 provides that a person sexually harasses another person (the ‘person harassed’):

  • if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed;
  • if the person engages in other unwelcome conduct of a sexual nature in relation to the person harassed; or
  • 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.

Relevant circumstances to be taken into account may include, but are not limited to, the following:

  • the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
  • the relationship between the person harassed and the person who made the advance or request, or who engaged in the conduct;
  • any disability of the person harassed;
  • any other relevant circumstance.

‘Conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Section 28B provides that it is unlawful for:

  • a person to sexually harass an employee of the person, or a person who is seeking to become an employee of the person;
  • an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer;
  • a person to sexually harass a commission agent[4] or contract worker of the person, or a person who is seeking to become a commission agent or contract worker of the person;
  • a commission agent or contract worker to sexually harass a fellow commission agent or contract worker;
  • a workplace participant[5] to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.

[4] The Sex Discrimination Act 1984 defines a commission agent as ‘a person who does work for another person as the agent of that other person and who is remunerated, whether in whole or in part, by commission’.

[5] Workplace participant includes an employer or employee, a commission agent or contract worker, or a partner in a partnership.