Effective from 31 January 2025, sexual harassment in connection with work is prohibited under the state Industrial Relations Act 1979. A person must not sexually harass another person in connection with work.
An employer may be liable for sexual harassment perpetrated by an employee against another employee or worker, unless the employer can prove they took all reasonable steps to prevent the employee from sexually harassing a person.
Under the Industrial Relations Act, public and private sector workers covered by state employment laws can:
- make an application to the Western Australian Industrial Relations Commission (WAIRC) for a stop sexual harassment order;
- make a sexual harassment referral to the WAIRC for conciliation and arbitration of the sexual harassment claim. The WAIRC has the power to make a range of orders in relation to the claim, including orders for compensation; or
- commence proceedings in the Industrial Magistrates Court (IMC) against an employer or another person for not complying with the prohibition on sexual harassment.
Each of these options is explained in the relevant section below.
Alternative pathways for sexual harassment matters
Workers in Western Australia have a number of other options for taking action in relation to sexual harassment matters:
- making an application to the Fair Work Commission for a stop sexual harassment order and/or for the Fair Work Commission to otherwise deal with a dispute about sexual harassment;
- lodging a sexual harassment complaint with the Equal Opportunity Commission, or the Australian Human Rights Commission;
- lodging a complaint with WorkSafe;
- lodging a workers compensation claim with WorkCover WA where the sexual harassment has caused a workplace injury or illness;
- reporting sexual harassment to WA Police if criminal conduct is involved.
Workers in the national industrial relations system cannot use the provisions in the state Industrial Relations Act to resolve a sexual harassment matter. The Fair Work Commission has information on options under the national Fair Work Act 2009. Each of the alternative pathway options listed direct above are relevant to all workers in Western Australia.
If you have experienced sexual assault or sexual harassment, you can contact 1800 RESPECT (Phone 1800 737 732 or visit ) for counselling, support and information, 24 hours a day, 7 days a week.www.1800respect.org.au
The Workplace Respect Project run by Circle Green Community Legal provides legal assistance services for people who have experienced workplace sexual harassment and discrimination. Visit www.circlegreen.org.au/projects/workplace-respect/
Definitions of terms relating to sexual harassment used in state employment laws
Show moreMeaning of sexual harassment ‘in connection with work’
Under the Industrial Relations Act, sexual harassment ‘in connection with work’ means sexual harassment of a person that happens in connection with the person:
- being a worker; or
- seeking to become a worker in a particular business or undertaking.
A person (the ‘first person’) sexually harasses another person (the ‘second person’) if the first person, whether as an individual or as part of a group of individuals, makes an unwelcome sexual advance or an unwelcome request for sexual favours to the second person, or engages in other unwelcome conduct of a sexual nature in relation to the second person.
Conduct of a sexual nature in relation to the second person includes:
- making to, or in the presence of, the second person or another person, a statement of a sexual nature concerning the second person, whether by visual, oral, written or electronic communication; or
- publishing a statement of a sexual nature concerning the second person on the internet or any other form of communication.
Sexual harassment in connection with work may occur at the person’s workplace or at a place other than their workplace, including where a person is engaging in an activity which is authorised or permitted by their employer such as attending a work Christmas party.
The use of the term ‘individual’ is broad. It means that a person is protected from sexual harassment in connection with work perpetrated by their employer, a colleague, a contractor, a client or a customer of the business or undertaking in which the person works. It can also include an individual who is a national system employer or employee.
Meaning of 'worker'
A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as any of the following:
- an employee;
- a contractor or subcontractor;
- an employee of a contractor or subcontractor;
- an employee of a labour hire agency who is working in the person’s business or undertaking;
- an outworker;
- an apprentice or trainee;
- a student gaining work experience; or
- a volunteer.
Meaning of 'person conducting a business or undertaking'
The term ‘person conducting a business or undertaking’ (PCBU) includes sole traders, partnerships, public sector bodies and incorporated and unincorporated associations.
A PCBU does not have to conduct its business for profit or gain but the term does exclude volunteer associations if they do not employ anyone. There are also other exclusions to the term PCBU.
A PCBU can be a worker if they are an individual who carries out work in that business or undertaking. They are therefore also protected from sexual harassment in connection with work.
Prohibition on sexual harassment in connection with work and vicarious liability
Show moreUnder the Industrial Relations Act, a person must not sexually harass another person in connection with work.
The prohibition on sexual harassment is a civil penalty provision and proceedings for a contravention of the prohibition can be taken in the Industrial Magistrates Court.
A person who employs an employee or engages another person as an agent (‘the principal’) may be vicariously liable for acts of their employees or agents. This means that if an employee or agent, in connection with their employment or their agent’s duties, sexually harasses a person in connection with work, the Industrial Relations Act applies to the principal of the employee or agent as if the principal had also sexually harassed the person.
However, this will not apply if the principal proves they took all reasonable steps to prevent the employee or agent from doing acts that would contravene the prohibition on sexual harassment. For example, did the principal develop and implement workplace sexual harassment policies and engage in periodic reinforcement of those policies. What ‘reasonable steps’ are may depend on the size of the organisation, the nature of its workforce and any history of sexual harassment.
Applications to the WAIRC for a stop sexual harassment order
Show moreA worker who reasonably believes that they have been sexually harassed in connection with work may make an application to the Western Australian Industrial Relations Commission (WAIRC) for a stop sexual harassment order.
A union may also refer a sexual harassment matter to the WAIRC in relation to a member.
The WAIRC must start to deal with a stop sexual harassment application within 14 days after the application is made, and it may deal with the application via conciliation, arbitration, or take other action as appropriate. It may also dismiss an application.
Visit the Western Australian Industrial Relations Commission website for more information and to make a stop sexual harassment application.
The WAIRC may make a stop sexual harassment order if it is satisfied that:
- a person has sexually harassed another person in connection with work; and
- there is a risk that the person will continue to do so.
The WAIRC may make any order it considers appropriate to prevent a person sexually harassing the other person, other than an order requiring payment of compensation.
The WAIRC will be unable to make a stop sexual harassment order if there is no demonstrated risk of continued sexual harassment of the person by an individual. For example, where an employee’s employment has ended after making a stop sexual harassment application but before the matter is dealt with by the WAIRC.
A person to whom a stop sexual harassment order applies must comply with the terms of the order. If an order is not complied with, enforcement action can be taken in the Industrial Magistrates Court. The Court can impose monetary penalties and make further orders seeking compliance.
The WAIRC is able to deal with a stop sexual harassment application notwithstanding that the worker has made a complaint to another body, such as WorkSafe, the Equal Opportunity Commission or WorkCover.
Sexual harassment referrals to the WAIRC
Show moreA state system worker can make a sexual harassment referral to the Western Australian Industrial Relations Commission (WAIRC) alleging sexual harassment in connection with work. The WAIRC may then conciliate and arbitrate the matter.
Visit the Western Australian Industrial Relations Commission website for more information and to make a stop sexual harassment referral.
Where the WAIRC arbitrates a sexual harassment referral and determines that a person has sexually harassed another person in connection with work, it is able to make a range of orders. This may include one or more of the following:
- an order for compensation for loss or injury suffered by a person because of the sexual harassment;
- an order for an amount for remuneration lost by a person because of the sexual harassment;
- an order requiring a person to do a specified thing or cease a specified activity to redress loss or injury suffered by the other person because of the sexual harassment;
- an order for the purpose of preventing any future sexual harassment of the person; and/or
- any other order the WAIRC thinks appropriate.
These orders are intended to remedy past harm as well as prevent future harm. There does not have to be a risk that the person will continue to be sexually harassed for these orders to be made and the employee does not have to still be employed by a particular employer.
The WAIRC is able to make an order in relation to the person who engaged in the sexual harassment (the respondent) and any person who is vicariously liable for the respondent’s sexual harassment of the aggrieved person.
There is no limit on the amount of compensation that the WAIRC may award in a sexual harassment referral proceeding.
Proceedings to the Industrial Magistrates Court
Show moreA state system worker can commence proceedings in the Industrial Magistrates Court (IMC) in relation to an alleged contravention of the prohibition in the Industrial Relations Act on sexual harassment.
The IMC is able to issue penalties and make the same orders that the Western Australian Industrial Relations Commission (WAIRC) may make when the WAIRC is dealing with a sexual harassment referral e.g. orders for compensation.
Where the IMC determines that a person has sexually harassed another person in connection with work, it is able to make a range of orders. This may include one or more of the following:
- a penalty for contravening the prohibition on sexual harassment;
- an order for compensation for loss or injury suffered by a person because of the sexual harassment;
- an order for an amount for remuneration lost by a person because of the sexual harassment;
- an order requiring a person to do a specified thing or cease a specified activity to redress loss or injury suffered by the other person because of the sexual harassment;
- an order for the purpose of preventing any future sexual harassment of the person; and/or
- any other order the IMC thinks appropriate.
The IMC is able to make an order in relation to the person who engaged in the sexual harassment (the respondent) and any person who is vicariously liable for the respondent’s sexual harassment of the aggrieved person.
There is no limit on the amount of compensation that the IMC may award in a sexual harassment referral proceeding.
Multiple actions
Show moreThe sexual harassment provisions under the Industrial Relations Act do not exclude or limit the operation of other State or Commonwealth laws that are capable of operating concurrently with the Industrial Relations Act provisions. This includes the Fair Work Act 2009, Equal Opportunity Act 1984 and Sex Discrimination Act 1984.
This means that a person is not prevented from making a claim regarding a particular allegation of sexual harassment in connection with work to a different tribunal – for example, to the Equal Opportunity Commission, the Fair Work Commission or the Australian Human Rights Commission.
However, multiple actions relating to the same allegation of sexual harassment are prevented. This means that a person cannot receive compensation for the same sexual harassment conduct from multiple bodies.
A person also cannot make an application to both the WAIRC and the IMC in relation to the same allegation that a person was sexually harassed in connection with work.
These restrictions do not apply, however, to an application to the WAIRC for a stop sexual harassment order. For example, a person is not prevented from seeking both a stop sexual harassment order from the WAIRC and commencing proceedings in the Industrial Magistrates Court (IMC) in relation to an alleged contravention of the prohibition on sexual harassment.
