Persons conducting a business or undertaking (PCBU’s) must ensure the physical and psychological health and safety of workers and other persons at the workplace. This duty includes taking proactive steps to prevent sexual harassment, sex or gender-based harassment, discrimination and other objectionable conduct at work. It’s important to understand what sexual harassment is, as PCBUs are responsible for managing the risk of sexual harassment and sex or gender-based harassment at work. PCBUs must manage these issues through proactive identification of risks, the implementation of control measures in accordance with the hierarchy of controls, reviewing control measures and implementing a prevention plan.
It is not enough to just think about these risks generally – PCBUs must consider the characteristics of workers, the workplace and the work environment when identifying risks and determining control measures.
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YOUR "POSITIVE" DUTY | IS IT UNLAWFUL? | SEXUAL HARASSMENT | HARASSMENT ON THE BASIS OF SEX | DISCRIMINATION | HOSTILE WORK ENVIRONMENTS | VICTIMISATION
Your “positive” duty
The positive duty means that, rather than waiting for complaints to be made, PCBU’s are required to take proactive steps to prevent conduct that would be discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct in the first place by, for example:
- Ensuring there are organisational policies in place that address the importance of respectful behaviour in the workplace
- Ensuring easily accessible information is available
- Conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination or sexual harassment and the extent to which such conduct may have been experienced by members of the workforce
- Engaging in informal or formal disciplinary discussions with members of the organisation who are displaying conduct that may be disrespectful and unlawful under the AD Act
- Leaders clearly and regularly articulating expectations of respectful behaviour, and
- Training leaders on their duties and how to identify and manage such behaviours, and training workers on their obligations.
Is it unlawful?
Yes, and PBCUs have a responsibility to actively take reasonable and fair steps to prevent sexual harassment, sex or gender-based harassment, discrimination and other objectionable conduct, as well as victimisation at work. People who experience such unlawful conduct can take action against businesses and employers who don't prevent it at work.
What is sexual harassment?
Sexual harassment is unlawful behaviour that consists of three key elements, namely behaviour that:
- is unwelcome
- is of a sexual nature, and
- a reasonable person who is aware of the circumstances, considering the situation, could possibly make the person subjected to the conduct feel offended, humiliated or intimidated.
Unwelcome behaviour
Behaviour is unwelcome if it is not solicited or invited, and is regarded by the target as undesirable or offensive. It is irrelevant that the conduct in question may not have been unwelcome to others or has been an accepted feature of the workplace in the past.
Conduct of a sexual nature
A person sexually harasses another person if they (including but not limited to):
- make an unwelcome sexual advance
- make an unwelcome request for sexual favours
- engage in other unwelcome conduct of a sexual nature, which 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.
Offence, humiliation, intimidation
Unwelcome behaviour of a sexual nature may constitute sexual harassment if, in the circumstances, a reasonable person (aware of the circumstances) would anticipate the possibility that the recipient would feel offended, humiliated or intimidated by the conduct.
Whether behaviour is sexual harassment depends on how a reasonable person would interpret the behaviour in that situation. Behaviour that is sexual harassment in one situation may not be in a different situation
Circumstances relevant to a determination of sexual harassment include
- 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, and
- any other relevant circumstance.
What is harassment on the basis of sex?
Harassment on the basis of sex happens if a person engages in unwelcome conduct of a demeaning nature in relation to another person, and engages in the conduct on the basis of:
- the other person’s sex; or
- a characteristic that a person of the other person’s sex generally has; or
- a characteristic that is often imputed to a person of the other person’s sex; or
- a sex the other person is presumed to be, or to have been at any time, by the person engaging in the conduct; or
- a sex the other person has been, even if the person is not that sex at the time of the conduct;
and engages in the conduct:
- with the intention of offending, humiliating or intimidating the other person; or
- in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Discrimination
It is unlawful to treat someone with an attribute less favourably than someone without that attribute. Discrimination on the basis of the following attributes is unlawful:
- Sex
- Relationship status
- Pregnancy
- Parental status
- Breastfeeding
- Age
- Race
- Impairment
- Religious belief or religious activity
- Political belief or activity
- Trade union activity
- Lawful sexual activity
- Gender identity
- Sexuality
- Family responsibilities
- Association with, or relation to, a person identified on the basis of any of these attributes.
However, an employer may fix reasonable and genuine terms in relation to the holder or prospective holder of a position who, because of an impairment,
- Has a restricted capacity to do work genuinely and reasonably required for the position, or
- Requires special conditions in order to be able to do the work.
Hostile work environments
Legislation includes protections not just for unlawful behaviour directed at a worker, but where a PCBU and/or employer does not prevent 'hostile work environments'.
In this situation, conduct does not need to be directed at a specific person, it just needs to be offensive, intimidating or humiliating to a person because of their sex or a characteristic that appertains to or is imputed to a person of that sex.
General sexual banter, or innuendo and offensive jokes can result in some people feeling unwelcome or excluded.
Victimisation
Victimisation is unlawful, and occurs when someone is treated unfairly in response to allegations, assertions, complaints, or proceedings of sexual harassment, because they:
- refused to do something that would contravene the legislation
- complained about something that is unlawful, or
- were involved in another person’s complaint.
Victimisation at work
Sexual harassment is unlawful at work and 'in connection with' work.
While it’s not defined in legislation, various Court decisions have found:
- Any place which is attended for the purposes of performing one’s work responsibilities and duties would amount to work
- Deciding whether a particular location amounts to a workplace will require careful analysis of the chain of events leading to the person being there.
For more information, Work Health and Safety Queensland (WHSQ) have put together a fact sheet on this topic.
You can also find a communication kit from WHSQ, which has been created to help you, and your workers understand these obligations.
Additional Changes
From 1 March 2025, PCBUs are required to prepare and implement a prevention plan to manage identified risks of sexual and sex or gender-based harassment.
This plan must be reviewed if a report of sexual or sex or gender-based harassment is made, or otherwise every three years.
Sexual harassment at work training course
Master Builders conducts training for members on sexual harassment at work. We have a range of courses including for business owners/senior leaders on how to prevent sexual harassment, and sessions for workers explaining to them what sexual harassment is and what their obligations are.
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