Managing workplace harassment and sexual harassment complaints.
Sexual harassment is one of the most significant risks facing Australian employers today. For small to medium businesses (SMEs), the consequences of failing to prevent or properly address sexual harassment complaints can be severe, ranging from costly legal claims in the Fair Work Commission (FWC), reputational damage, to fines under Work Health and Safety laws.
Recent reforms and guidance from the Australian Human Rights Commission (AHRC) and the Fair Work Commission (FWC) make it clear: every employer has a duty to actively prevent and respond to sexual harassment in the workplace.
What the Law says : Sexual Harassment Defined
Definition under Australian Law
The Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) both prohibit sexual harassment. In simple terms, sexual harassment is:
‘Any unwelcome conduct of a sexual nature, in circumstances where a reasonable person would anticipate the possibility that the other person would be offended, humiliated, or intimidated.’
Examples include:
- Unwelcome sexual advances or touching
- Sexual jokes or innuendo
- Repeated requests for dates after being declined
- Sharing sexually explicit materials or messages
What Sexual Harassment Is Not
The FWC’s Anti-Bullying & Sexual Harassment Benchbook makes it clear that not all conduct is sexual harassment. For example:
- Consensual interactions and friendships (where both parties freely agree)
- Reasonable workplace interactions such as performance feedback
- Isolated or minor inappropriate comments (though still unprofessional) may not reach the legal threshold
The key factors are unwelcome behaviour, sexual in nature, and the effect on the recipient.
FWC and AHRC: Expanded Powers
AHRC (Respect@Work Reforms)
- Employers now have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment.
- This means prevention is just as important as responding after the fact.
FWC (Fair Work Commission)
- Employees can lodge stop sexual harassment orders, similar to stop bullying applications.
- The FWC Benchbook guides how matters are considered, stressing procedural fairness, clear evidence, and timely employer action.
The risks for harassment (sexual and other) for businesses
Failing to take sexual harassment seriously creates multiple risks:
- Legal Costs: Employees can bring claims in the FWC, AHRC, or Federal Courts.
- Compensation & Penalties: Awards can include reinstatement, compensation for economic and non-economic loss, and civil penalties.
- Workplace Safety Breaches: Under WHS legislation, employers may be prosecuted for failing to provide a safe workplace.
- Reputation Damage: In the digital age, word spreads quickly—damaging your employer brand and ability to attract talent.
- Productivity Loss: Complaints left unmanaged often escalate into team conflict, disengagement, or turnover.
Managing and Preventing Complaints: Best Practice for SMEs
1. Policies and Training
- A clear sexual harassment and workplace behaviour policy is essential.
- Regular training for all staff helps reinforce expectations and legal obligations.
2. Complaint Handling Process
- Provide multiple avenues for complaints (not just through one manager).
- Investigate complaints promptly, confidentially, and fairly.
- Follow procedural fairness: give both complainant and respondent the chance to be heard.
3. Workplace Culture
- Encourage respectful behaviours through leadership role-modelling.
- Actively address poor behaviour—even “jokes” or borderline conduct—to prevent escalation.
4. Independent Support
- SMEs often lack in-house HR teams with the expertise to investigate complex complaints.
- Using an external HR consultancy ensures impartiality, compliance, and professionalism.
The benefits of using a HR consultant and not an employment lawyer
Many small businesses assume their only option is to engage an employment lawyer when a sexual harassment complaint arises. While lawyers may be necessary in litigation, early intervention with an HR consultancy is far more cost-effective and practical.
At ER Focus, our HR consultants provide:
- Independent investigations that meet FWC and AHRC standards
- Policy development and training tailored to your workforce
- Complaint resolution and mediation before matters escalate
- Risk management advice that protects your business from legal exposure
- And unlike law firms, we focus on prevention and resolution—helping you manage issues at the workplace level before they become expensive disputes.
FAQs About Sexual Harassment in Australian Workplaces
What is considered sexual harassment in the workplace in Australia?
Sexual harassment is any unwelcome conduct of a sexual nature that makes someone feel offended, humiliated or intimidated, as defined by the Sex Discrimination Act and the Fair Work Act. It includes unwanted touching, sexual comments, persistent advances, or sharing explicit material.
What should a small business do if an employee complains of sexual harassment?
Act quickly. Acknowledge the complaint, outline the process, and investigate fairly. Both parties must be heard, and confidentiality must be maintained. Failing to act can expose the business to FWC or AHRC claims.
Can an employee apply to the Fair Work Commission for sexual harassment?
Yes. Since the Respect@Work reforms, employees can apply for a stop sexual harassment order through the FWC, similar to a stop bullying application.
What are employer obligations under Respect@Work reforms?
Employers now have a positive duty to prevent sexual harassment. This means businesses must take reasonable steps, such as implementing policies, training staff, and addressing culture—not just reacting when complaints arise.
How can HR consultants help manage sexual harassment complaints?
Specialist HR consultants provide independent investigations, compliant policies, mediation, and training. For SMEs without internal HR capacity, this is a cost-effective way to meet legal obligations and avoid costly disputes.
Final Word
For Australian SMEs, sexual harassment is not just a compliance issue, it’s a cultural, legal, and reputational risk. With stronger obligations under the Respect@Work reforms and new powers for the FWC, businesses can no longer afford to take a reactive approach.
By partnering with ER Focus, you gain specialist HR support that is cost-effective, legally sound, and practical for small and medium businesses. Protect your people, protect your business, and ensure you are meeting your obligations under Australian law.
Need advice?
For a complimentary discussion about handling harassment in the workplace, contact David directly.
David Haydon
Workplace Investigations Consultant
Disclaimer. This article provides general information only and is not intended as legal advice. Every workplace matter is different, and employers should seek professional advice tailored to their circumstances. ER Focus is not a law firm. Where legal advice is required, we work with trusted employment lawyers and can assist in making referrals.