Sexual harassment in the workplace and beyond
By Brian O’Shea, Special Counsel, Workforce Services, Peak Services
There is currently an increased focus on the laws and reporting requirements for sexual harassment in Australia. There appears to be confusion on the operation of those laws, partly due to the differing treatment of sexual harassment throughout Australia’s states and territories.
Brian O'Shea
Sexual harassment law in Queensland
In Queensland, sexual harassment is prohibited by the Anti-Discrimination Act 1991 (Qld) (ADA) and the Sex Discrimination Act 1984 (Cth) (SDA). It may come as a surprise to some people that the ADA prohibits sexual harassment in all situations, not just in the workplace and work-related areas.
Sexual harassment is a civil offence in Queensland. However, it may be a criminal offence and include, for example:
- Making obscene phone calls
- Indecent exposure
- Sexual assault
What precisely is sexual harassment?
Sexual harassment is any unwelcome conduct “of a sexual nature” that is done either to offend, humiliate or intimidate another person, or where it is reasonable to expect the person might feel that way.
It is irrelevant to the question of whether in fact that person is offended, humiliated or intimidated. It merely has to be shown that it is reasonable to expect a person might feel that way.
Sex-based harassment is a form of discrimination. It is a conduct that occurs because of the sex of the intended victim and not necessarily sexual in nature. Examples of this kind of behaviour are:
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A statement that a female employee belongs at home or is not a suited for a particular job because she is a woman
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A conduct referring to pregnancy, childbirth or related conditions
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Offensive jokes that do not refer to sex, but the joke is told to embarrass a person because, for example, he is a man.
You can be sexually harassed by anyone. Sexual harassment does not have to be repeated or ongoing to be against the law. According to the Queensland Human Rights Commission, you can be discriminated against across several matters including but not limited to your sexuality.
Under the ADA, sexual harassment includes:
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Unwelcome physical touching
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Sexual or suggestive comments, jokes or taunts
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Unwelcome requests for sex
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Display of sexual material (e.g., photos or pictures)
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Sexual reading matter (e.g., emails, faxes or letters) (s119).
Though not the focus of this article, when someone takes or shares a nude or sexual image of someone without their consent or permission, it is called “image-based abuse” – or “revenge porn” as it is otherwise sometimes known. The Enhancing Online Safety Act 2015 (Commonwealth) established a civil penalty scheme to address non-consensual sharing of intimate images. The scheme allows victims to make a report (complaint or objection notice) to the eSafety Commissioner and for a civil penalty to be awarded.
Sexual harassment in the context of councils
It is critical for councils to understand the legal ramifications of sexual harassment in the workplace. This is because under the ADA councils may be vicariously liable for any breaches of the Act by its employee (ss 132 and 133 ADA).
Section 117 of the Act states as follows:
117 ACT’S FREEDOM FROM SEXUAL HARASSMENT PURPOSE AND HOW IT IS ACHIEVED
(1) One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from sexual harassment.
(2) This purpose is to be achieved by—
(a) prohibiting sexual harassment; and
(b) allowing a complaint to be made under chapter 7 against a person who has sexually harassed; and
(c) using the agencies and procedures established under chapter 7 to deal with the complaint.
Section 118 of the Act states that a person must not sexually harass another person.
Section 133 ADA provides:
(1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
What can councils do to prevent sexual harassment in the workplace?
Councils need to take reasonable steps to ensure they protect their staff from sexual harassment and other types of discrimination and vilification, and make sure their workplaces are free of this type of behaviour.
This may include:
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Writing policy about sexual harassment and making sure all employees, especially managers and supervisors, are appropriately trained in how to reduce or prevent incidents from happening
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Introducing effective processes for dealing with complaints
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Providing adequate training to minimise the risks associated with sexual harassment. As a minimum this can be met through the provision of regular, compulsory online training.
Councils or organisations cannot avoid their legal responsibility by saying they were not aware of sexual harassment in their workplace.
This means that the council, as well as the person or persons who engaged in the sexual harassment, can be liable to pay compensation for loss or damage suffered by a person as the result of sexual harassment.
The success of the implementation of these policies and procedures in large part depends on the level of awareness and understanding among employees on their obligations under the Anti-Discrimination Act.
Should you require assistance in relation to this area, please contact Mr Brian O’Shea, Special Counsel, Peak Services Legal on 07 3000 2152 or email peaklegal@wearepeak.com.au. Or, reach out to your IR Helpdesk for assistance via 1300 542 700.