Gender Matters Taskforce statement on sexual harassment

30 October 2017 By Screen Australia

Screen Australia has published a factsheet for people who believe they may have been sexually harassed at work.

“The Gender Matters Taskforce is made up of upcoming and prominent women, representative across the screen sector. Some women on the taskforce have recently fielded calls concerning sexual harassment and assault.

To assist with some of these questions and concerns, Screen Australia has put together a basic information sheet.

Our industry is dominated by small businesses and freelance workers. Often these parties are vulnerable without access to resources provided by bigger companies. It is important that we are all aware of our rights and responsibilities. The seriousness of this matter cannot be underestimated. We all bear a responsibility to support, inform and assist victims of sexual harassment and/or assault in every way possible.”

Joanna Werner
Chair – Genders Matters Taskforce

Please note: This fact sheet provides general information and is not intended, and should not be relied on, as a substitute for legal or other professional advice. If required, it is recommended that the reader obtain independent legal advice.

What is sexual harassment?

Sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated (as defined under 28A of the Sex Discrimination Act 1984).
For behaviour to be sexual harassment, it must be unwelcome. That means that you don’t want it to happen.
It may include:

staring or leering
unnecessary familiarity, such as deliberately brushing up against you or unwelcome touching
suggestive comments or jokes
insults or taunts of a sexual nature
intrusive questions or statements about your private life
displaying posters, magazines or screen savers of a sexual nature
sending sexually explicit emails or text messages
inappropriate advances on social networking sites
accessing sexually explicit internet sites
requests for sex or repeated unwanted requests to go out on dates

Behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
Behaviour of a sexual nature which you agree or consent to, such as flirting, is not sexual harassment.
Sexual harassment disproportionately affects women with 1 in 5 experiencing sexual harassment in the workplace at some time. However, 1 in 20 men also report experiencing sexual harassment in the workplace.

How does the law protect me from sexual harassment?

Under the Sex Discrimination Act 1984 it is unlawful for a person to sexually harass another person including in employment, education, the provision of goods and services and accommodation.
Under work health safety legislation, employers and business operators owe their workers (including employees, contractors, invitees and volunteers) a duty of care to ensure their health and safety while they are at work, wherever that work is performed.
For example:

if workers attend work-related functions out of business hours, their employer continues to owe them a duty of care to ensure their safety and must take practical steps to protect them from harm.

Employers and business operators also owe a duty to ensure that the safety of other people is not put at risk from work carried out as part of their business or undertaking. Safety includes being free from harm from sexual harassment.
Extreme forms of sexual harassment, including sexual assault and indecent exposure, are also crimes (see information on sexual assault below).

What can you do if you are sexually harassed?

If you feel comfortable doing so, tell the person that their behaviour is unwanted and unacceptable, and ask them to stop. In some instances the person may not realise their behaviour is unacceptable. You can put your request in writing.
You may prefer to raise it with your employer, manager, supervisor, human resources department or other senior person. Workplaces often have a policy or process for dealing with sexual harassment.
If the person is from a different organisation, you can also raise it with that organisation, their manager, HR department, etc.
If you belong to a trade union or guild, you may be able to ask them to take up the complaint on your behalf.
Alternatively, ask a lawyer to take up the complaint on your behalf.
You can also make a written or online complaint about sexual harassment to the Human Rights Commission. The commission hears both sides of the story and when appropriate resolves the matter through conciliation. Call the Human Rights Commission complaints information line at 1300 656 419 for advice or email [email protected]
Keep a written record of everything that has happened, when it happened and the names of any people who saw what happened. The sooner you report the harassment the better.
You may want to visit your GP if you have physical or mental health symptoms. See the links below for common contact information.
You can call 1800 RESPECT to talk to a counsellor.

Employer and business operator legal responsibilities

Under the Sex Discrimination Act 1984 employers must take all reasonable steps to minimise the risk of discrimination and harassment occurring. Employers can be held legally responsible for harassment committed by their employees. This is known as vicarious liability (section 106(2) Sex Discrimination Act 1984).
Employers and business operators also owe a duty of care under work health safety legislation to ensure that the health and safety of their workers and all other persons is not put at risk from work carried out as part of their business or undertaking, including by sexual harassment. 'Health' is defined as both physical and psychological health.
In order to minimise their liability, employers need to demonstrate that they have taken all reasonable steps to prevent discrimination or harassment from occurring in connection with their business or undertaking and that they have responded appropriately to resolve incidents of discrimination and harassment.
Steps that employers and business operators can take include:

training employees to identify and deal with sexual harassment
promptly dealing with perpetrators
having a clear policy on sexual harassment
having a process for dealing with complaints

You may also have other obligations under privacy, defamation, occupational health and safety and industrial laws.
It’s also against the law for an employer to take action against someone (for example firing or demoting them) because they made a complaint about sexual harassment (section 94 Sex Discrimination ACT 1984 and Fair Work Act 2009 and equivalent state legislation).
For further information for employers on sexual harassment, see the Australian Human Rights Commission resource Good Practice, Good Business: Eliminating discrimination and harassment in the workplace.

What is sexual assault?

Sexual assault is against the law and is a serious crime.
Sexual assault generally includes any sexual behaviour without your consent.
It includes rape, incest and unwanted kissing or touching. It includes behaviour that does not involve actual touching. For example, forcing someone to watch pornography or masturbation is also sexual assault.
Consent means agreeing to have sex voluntarily and with a clear mind. You cannot consent to any sexual behaviour if you are under the age of 16 (or 17 in Tasmania). Likewise, there is no consent if you have a serious mental or intellectual disability that affects your ability to understand what is happening.

What can you do if you are a victim of sexual assault?

If you are in immediate danger call 000.
If you have been sexually assaulted, you have the right to be protected and you should report it to the police.
The police and health departments in each state publish information about reporting and getting treatment for sexual assault and there are State counselling services. For example, when reporting you generally can:

Ask to see a male or female police officer
Take a support person with you to the police station
Ask the police to organise an interpreter if required
Have an interpreter, if English is not your first language
Tell the police if you are worried about your safety.

You should get medical care. A doctor can test and treat you for any sexually transmitted infections, carry out a forensic examination (if you were assaulted very recently and you wish to report the crime to the police) and provide information on sexual assault and follow-up services.
Many people have experienced sexual assault a long time ago and may not report or discuss it. Just because the sexual assault happened more than a week ago, or many years ago, doesn't mean that you can't do anything about it. You can still report it.
Remember, you have a range of options for medical and legal action.
If you’ve been sexually assaulted you can call 1800 RESPECT to talk to a counsellor.

Sources and useful links

Human Rights Commission
Healthdirect
Police in each state and territory publish information to assist victims of sexual assault
1800 RESPECT is a national sexual assault, domestic family violence counselling service that provides counselling and support services to victims of sexual assault.