Legal Options for Sexual Harassment Claims in WA

Legal Options for Sexual Harassment Claims in WA

Any employee in Western Australia may seek compensation for sexual harassment under a range of workplace laws. This article aims to help provide some information about these laws and outline the different avenues available.

It is important to note this article does not provide legal advice. It is for information purposes only. If you need legal advice, please contact an experienced workplace lawyer.

Sexual harassment is against the law. There are number of applicable laws in which an employee may find fair redress in WA. These include:

 

Sexual Harassment Applicable Workplace Laws:
Workers’ Compensation and Injury Management Act 1981 (WA)
Equal Opportunity Act 1984 (WA)
The Occupational Safety and Health Act 1984 (OSH ACT)
Criminal Code Act Compilation Act 1913
Fair Work Act 2009 (CTH)
Sex Discrimination Act 1984 (CTH)

Included below is more information about each of these workplace laws, and how they apply to sexual harassment claims. It is important you contact an experienced workplace lawyer, at the earliest opportunity, to receive accurate legal advice on a specific case.

WORKERS COMPENSATION AND INJURY MANAGEMENT ACT 1981 (WA)

What is an Injury?

The Workers’ Compensation and Injury Management Act 1981 (WA) is applicable if the sexually harassing behaviour causes an injury or disease arising out of, or in the course of employment.

Examples of Sexually Harassing Behaviour

The Australian Human Rights Commission provided the following examples of sexually harassing behaviour:

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact; and
  • sexually explicit emails or SMS text messages.

Making a Claim

All employers in Western Australia are required to have workers’ compensation insurance. If a worker is subjected to sexual harassment and as a result becomes unwell and not able to work, and/or incurs expenses for medical treatment, then the worker is entitled to make a claim. A claim form can be downloaded from the Workcover website.

Workcover WA

If your claim is pended or declined by the workers’ compensation insurer a worker can make an application for Conciliation with Workcover. WorkCover WA is the government agency responsible for the workers’ compensation and injury management system in Western Australia. Conciliation involves parties in dispute coming to their own agreement, with the assistance of an independent Conciliation Officer from the Workers’ Compensation Conciliation Service.

Application for Conciliation

A Conciliation application can be found by clicking on this link.

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EQUAL OPPORTUNITY ACT 1984 (WA)

To make a claim for sexual harassment under the Equal Opportunity Act 1984 (WA) a worker must establish they were subjected to:

  • unwelcome sexual advances
  • request for sexual favours
  • unwelcome conduct of a sexual nature

The worker must also establish that they had reasonable grounds for believing that in rejecting the advances or conduct they would be disadvantaged in their employment, or in fact were disadvantaged. Sexual harassment does not need to be repeated or continuous, it can involve a single incident.

Examples of Sexually Harassing Behaviour

The Equal Opportunity Commission WA has stated that sexual harassment can take many forms including, but not limited to:

  • unwelcome physical touching, hugging or kissing;
  • staring or leering at someone or at parts of their body;
  • suggestive comments or jokes;
  • insults or taunts based on sex;
  • sexually explicit pictures, e-mails or text messages; and
  • intrusive questions about a person’s private life or body.

Equal Opportunity Commission

The Commissioner for Equal Opportunity established the Equal Opportunity Commission to investigate and conciliate complaints lodged by people who have been sexually harassed in the workplace. If the complaint is not resolved at the conciliation stage the Commissioner has the authority to refer the matter to the Tribunal.

If the complaint is referred to the Tribunal and after the enquiry the Tribunal determines that the complaint is made out the Tribunal has the power to order the respondent to pay to the complainant damages not exceeding $40,000.00 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct.

Making a Complaint

A complaint form can be found by clicking on this link.

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THE OCCUPATIONAL SAFETY AND HEALTH ACT 1984 (OSH ACT)

Under the Occupational Safety and Health Act 1984 an employer shall, where practicable, provide and maintain a working environment in which workers are not exposed to hazards. A hazard is defined as anything that may result in injury or harm to the health of a person.

Examples of Behaviours Which Are Likely to Result in Injury or Harm

  • abusive, insulting or offensive language;
  • behaviour or language that frightens, humiliates, belittles or degrades;
  • inappropriate comments about a person’s appearance, lifestyle, or their family;
  • teasing or regularly making someone the brunt of pranks or practical jokes;
  • harmful or offensive initiation practices; and
  • physical assault or threats.

Worksafe WA

The Occupational Safety and Health Act 1984 (OSH Act) is enforced by the WorkSafe Western Australia Commissioner (WorkSafe Commissioner).  WorkSafe require the worker to have exhausted all avenues to stop the activities (sexual harassment) complained of and will only investigate if the activities continue. The Worksafe Inspector will only investigate whether the employer has met its obligations under the Act and will not become involved in the specific details of the activities complained of.

Making a Complaint

To make a complaint click on this link.

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CRIMINAL CODE ACT COMPILATION ACT 1913

Sexual assault and sexual abuse under the Western Australian Criminal Code are criminal offences. In some cases sexual harassment may be sufficiently severe or pervasive that it will constitute a crime. For example, if the unwanted behaviour includes physical contact that is sexual in nature it would be sexual assault and is a criminal offence.

Examples of Sexual Harassment Which May Also Constitute Assault

  • penetration of a person’s body part by the body part of another person’s body part;
  • of a body part by another body part (i.e., penal penetration of mouth, anus, vagina);
  • penetration of a body part by an object;
  • contact with genitalia, breast, buttocks, or other intimate body part; and
  • exposure of genitalia, breast, buttocks or other intimate body parts.

WA Police

In Western Australia sexual assault and sexual abuse are crimes against the state. If you report the incident to the police and make a formal statement, you are a witness to a crime. The police or the Director of Public Prosecutions decide whether to prosecute based on your statement and any other evidence you may produce. You can make a formal or informal report to the police.

Reporting to the Police

Report sexual assault matters to your local police station or call police on 131 444. The Sex Assault Squad can be contacted on (08) 9428 1600 or by email.

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FAIR WORK ACT 2009 (CTH)

What is Bullying?

The Fair Work Act 2009 (Cth) defines bullying as repeated and unreasonable behaviour directed towards a worker or a group of workers and that behaviour creates a risk to health and safety.

Examples of Bullying

In Amie Mac v Bank of Queensland Limited and Others [2015] FWC 774 the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were:

“… intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.

Constitutionally Covered Business

All workers who work in a constitutionally covered business can apply to the Fair Work Commission for an order to stop bullying.

A constitutionally covered business is any corporation which has employees. It does not include sole traders, partnerships and some state government employees.

Fair Work Commission

The Fair Work Commission is Australia’s national workplace relations tribunal. One of the Commission’s powers on an application by a worker who is being bullied in the workplace is to make an order to stop the bullying. The Commission does not have the authority to order payment of compensation or damages to a worker.

Application to Stop Bullying

An application to stop bullying can be found by clicking this link.

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SEX DISCRIMINATION ACT 1984 (CTH)

The Sex Discrimination Act 1984 makes sexual harassment against the law in the workplace. The Sex Discrimination Act 1984 also covers you if you are sexually harassed when you are purchasing or providing goods or a service or when you are studying at a school, college or university.

Examples of Sexually Harassing Behaviour

The Australian Human Rights Commission provided the following examples of sexually harassing behaviour:

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex;
  • intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact; and
  • sexually explicit emails or SMS text messages.

Australian Human Rights Commission

The Australian Human Rights Commission has statutory responsibilities under the Sex Discrimination Act 1984. The Commission has authority to investigate and conciliate complaints of sexual harassment. The Commission is not a court. If your complaint is not able to be resolved at conciliation your complaint will be terminated. If your complaint is terminated, you may be able to take your complaint to the Federal Circuit Court or the Federal Court of Australia. The Federal Circuit Court or the Federal Court of Australia has authority to order payment of compensation.

Making a Complaint

Information can be obtained by clicking on this link.

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Contact an Experienced Lawyer for Advice

No employee should have to endure unwanted sexual advances in the workplace. Sexual harassment is against the law, and you should seek legal advice as soon as possible. Perth City Legal have over 20 years’ experience in sexual harassment cases in Western Australia. Please contact us for a confidential consultation today.