The law on sexual harassment in Victoria is governed by the Equal Opportunity Act 2010. Sexual harassment includes any unwelcome sexual behaviour, which is likely to make a person feel offended, humiliated or intimidated. It can be physical verbal or written. Sexual harassment can be comprised of a single incident or it can be repeated behaviour. Sexual harassment can be directed at anyone but women are disproportionately affected by it, with the Human Rights Commission reporting that one in five Australian women experiencing sexual harassment in the workplace at some time.
Some forms of sexual harassment also constitute criminal offences such as indecent assault, stalking and indecent exposure. If you have been the victim of this type of sexual harassment you should consider making a report to the police as well as taking civil action.
What is sexual harassment?
Section 92 of the Equal Opportunity Act defines sexual harassment as an unwelcome sexual advance or an unwelcome request for sexual favours in circumstances where a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated. This includes acts of physical intimacy, remarks or statements with sexual connotation and gestures, actions or comments made in the person’s presence.
Where can sexual harassment happen?
The Equal Opportunity Act prohibits sexual harassment in public life, including in the provision of accommodation, education, workplaces, in the provision of goods and services and in professional associations and industrial organisations.
What can you do about it?
If you are sexually harassed, you can take any of the following steps:
- Talk to the person directly;
- Make a complaint to the organisation;
- Make a complaint the Human Rights and Equal Opportunity Commission.
The Commission provides a free dispute resolution service to help parties resolve sexual harassment complaints. This will involve providing an outline of your complaint, including how the behaviour has impacted you. The Commission will then invite the other parties to attend conciliation and attempt to resolve the dispute in a mutually agreeable way. The conciliator will help parties to identify the disputed issues, come up with options, consider alternatives and try to reach an agreement.
The Commission does not have the power to make orders or award compensation. The outcomes achieved at conciliation include:
- An apology;
- Financial compensation;
- Reinstatement to a job or a reference;
- Access to previously denied services or opportunities;
- An agreement to change or develop policies;
- An agreement to undertake training.
Complain to VCAT
If you are unable to resolve your dispute through conciliation, you can complain to the Victorian Civil and Administrative Tribunal (VCAT). VCAT has the power to make binding orders, including monetary and non-monetary orders. This may include an order that a party pay compensation for loss of earning or an order that the firm implement human resources training or policies to combat sexual harassment in the workplace.
A VCAT decision can be appealed on a point of law. In other words, if you think the Tribunal made an error in the way it applied the law. An appeal against a VCAT decision is made to the Victorian Supreme Court. The Supreme Court can set aside the decision if it is incorrect in law. An appeal must be filed within 28 days of the date of the decision. This time limit can only be extended with the permission of the court.
State or federal law?
Victorian sexual harassment law overlaps with federal law. Sexual harassment is prohibited under the Sex Discrimination Act in the workplace, in education and in the provision of goods and services. Complaints under the Sex Discrimination Act can be made to the Australian Human rights Commission.
If you require legal advice in a sexual harassment matter or in any other legal matter, please contact Go To Court Lawyers.