Sexual Harassment
(A Code in Practice)
Preface
Status
This Code is issued under Section 48(ga) of the Sex Discrimination Act 1984 (Cth) (the Sex Discrimination Act) which empowers the Human Rights and Equal Opportunity Commission (HREOC) to prepare and publish guidelines for the avoidance of discrimination on the ground of sex, marital status, pregnancy or potential pregnancy, and discrimination involving sexual harassment.
This Code provides guidelines only for the avoidance of sexual harassment in the workplace and employers should seek their own legal advice as needed. The Code is not legally binding, however it incorporates mandatory requirements of the Sex Discrimination Act, established case law principles and accepted practice in the area.
Employers are encouraged to comply with this Code to minimise the risk of liability for unlawful sexual harassment.
Purpose
The purpose of this Code is to:
- provide employers with practical guidance on the sexual harassment provisions in the Sex Discrimination Act; and
- assist employers to implement policies and procedures which will eliminate and prevent sexual harassment at work.
Third edition
The Code updates the second edition that was published in 1997. The Code has been reorganised and some elements have been amended. This third edition represents the law as at January 2004 and should be preferred over the 1997 edition.
Scope
The Code deals with sexual harassment in the workplace. It applies to most workplace participants, depending on the particular facts of a case:
- the private sector (including small business);
- unions;
- non-government community organisations;
- voluntary bodies;
- clubs;
- federal Government agencies;
- federal Government business enterprises; and
- educational institutions not under the control of State Government.
Except where expressly stated, this Code does not apply to State Government instrumentalities or State Government employees. 1
Although this Code is a guide to the Sex Discrimination Act, sexual harassment is also prohibited by State and Territory anti-discrimination laws. Unless an exception applies, employers must comply with both the national legislation and the relevant State or Territory law. These are:
- Anti-Discrimination Act 1977 (NSW);
- Equal Opportunity Act 1995 (VIC);
- Equal Opportunity Act 1984 (SA);
- Equal Opportunity Act 1984 (WA);
- Discrimination Act 1991 (ACT);
- Anti-Discrimination Act 1991 (QLD);
- Anti-Discrimination Act 1992 (NT);
- Anti-Discrimination Act 1998 (TAS).
Most of the general principles and procedures outlined in this Code are applicable at both a State and Territory and federal level. However, there are some differences in definitions and coverage. Employers are advised to contact the anti-discrimination agency in their State or Territory for further information. 2
Using the Sexual Harassment Code of Practice
The Sexual Harassment Code of Practice has been structured as follows:
- General principles: These are the basic principles of sexual harassment law summarised from the Sex Discrimination Act and case law, to give employers an overview of their legal obligations.
- Explanatory notes: These give further explanation of the general principles,
providing details and examples, including:
- case examples: summaries of relevant decided cases to illustrate legal points;
- workplace examples: "real life" situations and problems that employers may encounter in addressing sexual harassment in their workplaces.
- Guidelines in Practice: These give practical advice on preventing or remedying sexual harassment.
- Appendices: Additional useful information is included in the appendices on Complaints to the Human Rights and Equal Opportunity Commission and the Contact List for employers.
If you want a brief guide to the
law on sexual harassment, see the “general principles” If you want to know how to prevent sexual harassment and minimize the risk of liability see Chapters 4 and 3. If you are a small business employer, see “Guidelines for small business” at Chapter 6. If you want practical guidance on preventing sexual harassment, writing a sexual harassment policy or establishing a complaints procedure, see Chapters 4 and 5. If
you need further assistance see Appendix B. |
Footnotes
1. State
Government instrumentalities and State Government employees are exempt
from the discrimination and sexual harassment provisions of the Sex Discrimination
Act (Section 13) in relation to employment. The Act defines an "instrumentality
of a State" as "a body or authority established for a public purpose by
a law of a State and includes a technical and further education institution
conducted by or on behalf of a State, but does not include any other institution
of tertiary education" (Section 4). The breadth of the State exemption
has not been fully tested but would seem to include State Government departments,
statutory corporations, public authorities, local councils, State schools
and State vocational education and training institutions. The exemption
also applies to the Northern Territory and the Australian Capital Territory,
which are defined as States in the Sex Discrimination Act. It should be
noted that State Government instrumentalities and State Government employees
are required to comply with all non-employment related areas of the Sex
Discrimination Act, such as the provision of goods and services under
Section 22 of the Sex Discrimination Act, and with State and Territory
anti-discrimination laws, which include sexual harassment provisions.
2. Contact details are at Appendix B.
Last updated: 24 March 2004.
