ByLawyers News and Updates

Sexual harassment – QLD

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From 1 March 2025, all businesses with operations in Queensland are required to have a written prevention plan to manage the risks associated with sexual harassment and sex or gendered-based harassment. The requirement arises under the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld).

Any business without such a plan in place or that has not taken reasonable steps to make workers aware of the plan, is in breach of the Regulation and subject to fines of up to $6,000 per offence.

By Lawyers 101 Staff Handbook, part of the popular Practice Management publication, includes a national Discrimination, harassment and bullying policy that is an excellent starting place for QLD firms needing to comply with the legislative requirements.

More detailed state-specific resources are available on the WorkSafe QLD website, including a prevention plan template.

The commentary in the By Lawyers Practice Management publication will assist Queensland practitioners in formulating their management plan and reducing their risk. It includes a detailed discussion about sexual harassment with specific areas of focus for the legal profession and links to relevant cases involving law firms. There is also an outline of the factors that should be considered when implementing firm policies to ensure that they have the desired effect and prevent discriminatory and other unwelcome workplace practices.

Sexual harassment – FED

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From 6 March 2023 sexual harassment in connection with work is prohibited by the Fair Work Act 2009. Aggrieved persons have rights to apply to the Fair Work Commission and, with some limitations, the Federal Courts.

Part 3-5A of the Fair Work Act 2009 prohibits sexual harassment of workers, persons seeking to become workers, and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.

An employer may be vicariously liable for sexual harassment of their employee or agent unless the employer can show that they took all reasonable steps to prevent it.

An aggrieved person who alleges they have been sexually harassed in connection with work, or an industrial association entitled to represent the industrial interests of an aggrieved person, may apply to either:

  1. the Fair Work Commission under s 527J of the Act to either make a Stop Sexual Harassment Order (SSHO) , or to otherwise deal with the dispute, or both;
  2. a Federal Court for orders for contravention of civil remedy provisions, under Division 2 of Part 4-1.

However, a court application can only be made if the parties have first attempted to resolve the matter through the Fair Work Commission, and the Commission has issued a certificate to that effect, unless the application seeks an interim injunction.

These provisions of the Act are in addition to, and do not exclude or limit, any rights a person may have under any state or territory law in connection with sexual harassment.

If the application is not solely for a SSHO, the Commission must deal with the dispute according to its powers under s 595 (2), other than by arbitration – namely via mediation or conciliation, or making a recommendation or expressing an opinion.

Stop Sexual Harassment Order

Where an application seeks a SSHO, if the Commission is satisfied that the aggrieved person has been sexually harassed and there is a risk of the harassment continuing, the Commission may make any orders it considers appropriate to prevent the harassment, except for a pecuniary order: s 527J(i).

In considering the terms of its orders, the Commission must take into account the outcomes of any investigation into the matter, any other procedures available to the aggrieved person and the outcomes if any, and anything else the Commission considers relevant.

Time limits

Any application to the Fair Work Commission under Part 3-5A of the Fair Work Act 2009 may be dismissed if it is made more than 24 months after the alleged contravention, or after the last of a series of contraventions is alleged to have occurred: s 527G of the Act, or such longer time as the Commission allows upon application.

A sexual harassment court application must be brought within 60 days of the s 527R(3)(a) certificate being issued by the Fair Work Commission, or such longer time as the court may allow upon application.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The By Lawyers Employment Law guide has been updated accordingly.

Sexual harassment – FED

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New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.

Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.

There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.

‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).

Examples of sexual harassment include:

  • inappropriate behaviour including staring, leering, loitering or unwelcome touching;
  • suggestive comments, jokes or gestures based on sex or a person’s private life or body;
  • communicating sexually explicit material in person or electronically.

The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.

The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).

The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).

The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).

All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

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