Sexual harassment in the workplace - Multiple actions and s 28A, SDA

Sexual harassment in the workplace remains a complex legal issue under Australian law, governed by the Sex Discrimination Act 1984 (SDA) and intersecting legislation. This guidance note explores multiple legal avenues and critical statutory provisions, focusing on the interplay between Commonwealth and state jurisdictions. Practitioners must understand how overlapping claims, time limits, and definitions affect strategic decision-making.

Topics Covered

• Multiple or simultaneous actions under state and Commonwealth laws
• Sex-based discrimination under the Fair Work Act 2009 (Cth)
• Liability under work health and safety laws
• How to choose between jurisdictions for sexual harassment claims
• Commonwealth claims under the SDA
• Section 28A, SDA - defining sexual harassment

Essential Insights

• Assess jurisdictional overlaps carefully to avoid dismissal of claims due to concurrent proceedings restrictions.
• Consider the critical 21-day deadline for dismissal-related general protections claims under the Fair Work Act.
• Recognise sexual harassment as a workplace hazard triggering specific duties under work health and safety legislation.
• Understand the expanded definitions of “worker” and “person conducting a business or undertaking” (PCBU) under the SDA.
• Be aware that complaints must usually be initiated within 24 months to the AHRC, with potential termination at the President’s discretion.
• Explore remedies and dispute resolution options available in tribunals versus courts, balancing cost and procedural complexity.