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 sex discrimination and/or a criminal offence.
3.1 Victorian legislation
Section 15 of the Equal Opportunity Act 2010 requires organisations to take reasonable and proportionate steps to eliminate sexual harassment in the workplace as far as possible. This means that positive action should be taken to prevent unlawful behaviour occurring in the workplace. This positive duty requires an employer to do more than just respond to reports of sexual harassment as and when they arise. The positive duty is about being proactive in identifying problems and taking reasonable and proportionate measures to eliminate the causes of sexual harassment, as far as possible, that may be part of the systems or culture in the workplace.
Section 92 of the Equal Opportunity Act 2010 provides that a person sexually harasses another person:
- 1(a) makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person; or
- 1(b) engages in any other unwelcome conduct of a sexual nature in relation to the other person
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.
Conduct of a ‘sexual nature’ includes:
- 2(a) subjecting a person to any act of physical intimacy;
- 2(b) making, verbally or in writing, any remark or statement with sexual connotations to a person or about a person in their presence;
- 2(c) making any gesture, action or comment of a sexual nature in a person’s presence.
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.
Section 21 of the Occupational Health and Safety Act 2004 provides than an employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
The Gender Equality Act 2020 (Vic) commenced in March 2021. Sexual harassment in the workplace is a workplace gender equality indicator under section 3 of the Gender Equality Act.
Under section 7 of the Gender Equality Act, defined entities have a duty to promote gender equality. According to the Act, this means that a defined entity must — in developing policies and programs and in delivering services that are to be provided to the public, or have a direct and significant impact on the public:
- consider and promote gender equality; and
- take necessary and proportionate action towards achieving gender equality.
Section 10 of the Gender Equality Act requires defined entities to prepare a Gender Equality Action Plan based on the results of a workplace gender audit.
Section 11 of the Gender Equality Act provides that defined entities must undertake a workplace gender audit to access the state and nature of gender inequality in the workplace, with regard to the workplace gender equality indicators, which includes sexual harassment. Departments are encouraged to refer to the Commission for Gender Equality in the Public Sector guidance materials located on their website for a detailed overview of employer obligations in relation to workplace gender audits, gender impact assessments and Gender Equality Action Plans.
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 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 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 to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.
 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’.
 Workplace participant includes an employer or employee, a commission agent or contract worker, or a partner in a partnership.