Resources: Blog

Sexual harassment and work health and safety


New guidance material released by Safe Work Australia

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful. Under sex discrimination legislation, such as the Sex Discrimination Act 1984 (Cth), employers are obligated to ensure that workplaces are free from sexual harassment and can be held vicariously liable for the unlawful acts of their employees.

New guidance material has been released by SafeWork Australia that now places sexual harassment in the workplace within the ambit of work health and safety (WHS) legislation as well.

The Preventing Workplace Sexual Harassment – National Guidance Material (the Guide) provides that sexual harassment is a workplace hazard which gives rise to psychological and physical harm and which PCBUs (employers) have a duty to prevent. The Guide is complimented by Information Sheets for small businesses and for workers, released by Safe Work Australia.

The Guide provides that sexual harassment may occur at any workplace. Under WHS legislation, a “workplace” is defined broadly and is any place where work is carried out, and as such may include remote working, work-related activities such as training and work social activities. The Guide also provides that sexual harassment may also occur away from the workplace but arise from the workplace, such as offensive text messages sent from colleagues.

While anti-discrimination legislation prohibits workplace participants from engaging in sexual harassment, the Guide further identifies “third-party” sexual harassment which may be directed toward a worker by client or customer as a WHS risk.

Employers are obliged to eliminate WHS risks as far as reasonably practicable.  This requires employers to apply a risk management approach. Some of the control measures identified by the Guide to prevent workplace sexual harassment include:

  • implementing safe systems of work;

  • adopting anti-harassment policies;

  • undertaking anti-harassment training;

  • encouraging early reports of sexually harassing behaviour; and

  • appropriately responding to complaints in a timely manner.

The Guide also identifies sexual harassment as a form of “gendered violence”. Safe Work Australia has separately released the Preventing Workplace Violence and aggression – National Guidance Material to assist employers to prevent violence and aggression in the workplace.

What does this mean for employers?

The identification of sexual harassment as a WHS risk to which WHS obligations apply may mean that employers could be in breach of WHS laws if they fail to provide a safe working environment should sexual harassment in the workplace occur. This may also mean that complainants may be able to report risks of sexual harassment in the workplace to WHS regulators and those regulators may exercise any powers of inspection to ensure there has been compliance with WHS laws.

Employers should take the opportunity to review WHS systems to ensure that the risks of sexual harassment, including third-party harassment, are appropriately addressed. This will include updating anti-harassment policies and safety policies to recognise the risks of sexual harassment within the workplace and ensuring that there is regular training of employees in these policies.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Court fines PCBU $60,000 for failing to re-assess the risks associated with changing site conditions

Set and forget

Persons conducting a business or undertaking (PCBUs) have a positive obligation to ensure, so far as reasonably practicable, the health and safety of workers and others.


Court finds rescinded job offer was not age discrimination

The rooster and the sunrise

Discrimination in the workplace is unlawful under a number of Australian laws, including state and federal anti-discrimination legislation (such as the Age Discrimination Act 2004 (Cth)) as well as the Fair Work Act 2009 (Cth) (FW Act).


SafeWork NSW successfully prosecutes a PCBU for failing its consultation obligations with other duty holders

Consult, co-operate and co-ordinate

Persons conducting a business or undertaking (PCBUs) have a range of positive duties and obligations to ensure the health and safety of workers under the model work health and safety laws in Australia.


Employee dismissed for failing BAC tests

Cigarettes and cough lollies

In a recent unfair dismissal decision, the Fair Work Commission (FWC) has supported an employer’s decision to dismiss an employee for breaching its drug and alcohol policy despite the employer failing to strictly enforce the policy.


Fair Work Commission finds out-of-hours drink driving offence was not a valid reason for dismissal

Off the clock

Generally, the way in which an employee conducts themselves out-of-hours does not fall within the realm of what the employer can supervise or control. However, there are times where an employee’s conduct after business hours and away from work can impact the employment relationship.


Fair Work Commission rejects extension of time application after finding that the date of dismissal was made reasonably clear to the employee

Time's Up

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission. The statutory limit starts from the date the dismissal takes effect.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in Workplace Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.