Effectively preventing and responding to sexual harassment: A Code of Practice for Employers
Chapter 1: About this document
Contents
1.1 What is the purpose of this publication?
1.2 What does this Code of Practice deal with?
1.3 Status
1.4 Fourth edition
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1.1 What is the purpose of this publication?
The purpose of this Code of Practice, issued by the Australian Human Rights Commission (the Commission) is to:
- provide employers with practical guidance on the sexual harassment provisions in the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act)
- assist employers to develop and implement policies and procedures which will eliminate and prevent sexual harassment in the workplace.
1.2 What does this Code of Practice deal with?
The Code of Practice deals with sexual harassment in the workplace. It applies to most people in the following workplaces, depending on the particular details:
- the private sector (including small business)
- unions
- non-government community organisations
- voluntary bodies
- clubs
- federal government agencies
- federal government business enterprises
- educational institutions not under the control of state government.
Except where expressly stated, this Code of Practice does not apply to state government instrumentalities or state government employees.[1]
Although this Code of Practice is a guide to the federal 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 guidance provided in this Code of Practice is 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]
1.3 Status
This Code of Practice is issued under section 48(ga) of the Sex Discrimination Act 1984 (Cth) which empowers the Commission 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 of Practice provides guidelines only for the avoidance of sexual harassment in the workplace and employers should seek their own legal advice as needed. The document 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 of Practice to minimise the risk of liability for unlawful sexual harassment.
1.4 Fourth edition
The Code of Practice updates the third edition that was published in 2004. This fourth edition reflects the law as at October 2008 and replaces the 2004 edition. However, amendments do not necessarily reflect a change in the law since the 2004 edition, as some changes have been made for reasons of clarity.
References
[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.
