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These figures are reported in a 2018 Australian Human Rights Commission survey. In addition, the survey shows more than one in three people are bystanders to workplace sexual harassment.

Only one third of these bystanders acted in response to incidents, says CCIWA Senior Workplace Relations Consultant Andjelika Cabassi.

“This is a significant drop from the 2012 survey which found 50% of bystanders took action in response to sexual harassment in the workplace,” Cabassi tells the audience of 150 people at CCIWA’s 2023 Workplace Relations Conference.

“The survey also found only 17% of people who experienced sexual harassment at work made a formal report or complaint despite 33% of people having experienced sexual harassment.

“It also highlighted that women were more likely than men to have experienced sexual harassment in the workplace, and the greatest prevalence was experienced by employees in the information, media and telecommunications industry.”

What is sexual harassment?

Sex Discrimination Act 1984 (Cth) (section 28A):

• Unwelcome sexual advances
• Unwelcome request for sexual favours
• Other unwelcome conduct of a sexual nature
• A reasonable person would anticipate the possibility the person harassed would be:​
• Offended
• Humiliated
• Intimidated

 Sexual harassment is estimated to cost the Australian economy $3.8 billion each year, according to a Deloitte report.

“It occurs in every industry, in every location and at every level of the Australian workplace,” Cabassi says.

Unlike bullying, sexual harassment doesn't have to be repeated or continuous. “It can result from a one-off incident,” she says.

“The question as to whether or not the conduct is sexual in nature is an objective test.

“That means it is irrelevant whether a perpetrator intended to act in a sexual way or were aware they were actually acting in a sexual way. It is about whether the conduct can objectively be regarded as sexual in nature.”

Unwelcome conduct is behaviour that is “undesirable or offensive by the person to whom it is directed”, says Cabassi.

“Whether the conduct is unwelcome is a subjective test that looks to the recipient’s reaction, whether they've articulated that or not.

“A classic example is where you hear inappropriate conversations or jokes in a workplace lunchroom. The test regarding unwelcome conduct depends on how a reasonable person would interpret the behaviour in that situation and, again, it is irrelevant whether there was intent or awareness.”

Sexual harassment is serious misconduct

In September 2021, changes to the Fair Work Act 2009 (Cth) included sexual harassment becoming a form of serious misconduct, therefore, a valid reason for terminating an employee.

“This is significant as serious misconduct can result in the worker being dismissed without any notice,” Cabassi says.

In addition, ‘stop sexual harassment’ orders have been introduced, providing workers with a faster and lower cost process to deal with sexual harassment in the workplace.

Cabassi stresses the importance of getting some help to ensure employers take the correct approach.

“I think the basis of any complaint relating to sexual harassment is it should be investigated, because first of all, you need to determine whether or not it's happened,” she says.

“The standard of proof is not beyond all reasonable doubt; it's based on a balance of probabilities. And that's something you need to look at and go through first, and then you can look at remedies from there.

“If the person goes to the Fair Work Commission, that's a whole different ballgame.

“But my first recommendation would always be to investigate. If you don't have experience in investigating such complaints our team can definitely help you with that.

“It is a very complicated and sensitive area. So again, I have to stress, if you haven't got the experience, I suggest you get some assistance.”

Family and domestic violence leave entitlement

Cabassi also outlined the changes to the family and domestic leave entitlements. From February 1, 2023, non-small business employers are required to provide 10 days of paid family and domestic violence leave, while small businesses have a six-month grace period.

Additionally, employers are required to keep information regarding the use of family and domestic violence leave confidential, including on employees’ pay slips.

What’s changed?

• Previous:​
  - 5 days’ unpaid family and domestic violence leave to be provided by all businesses.
• Current:​
  - 10 days’ paid family and domestic violence leave effective from:​
  1 February 2023 - non-small businesses
  1 August 2023 - small businesses ​
• Applies regardless of whether used any of their unpaid entitlement of five days
• Part-time and casual employees entitled to full 10 days
• Does not accrue and resets annually

What should businesses do now?

• Assess risks and workplace culture​
• Visible and unambiguous leadership support​
• Review workplace policies​
• Education and training ​
• Management of complaints​
• Reporting and measuring

How can CCIWA help your business?

• Respect@Work health check​
• Workplace audits ​
• Dealing with Difficult Workplace Behaviours – Bullying and Sexual Harassment​
• Workplace investigations​
• Workplace policies and procedures​
• Instructor led and online training  ​
• Workplace mediation services