Guides · Workplace and the NSW IRC
Workplace sexual harassment: the law and the remedies in NSW.
The law on workplace sexual harassment has changed sharply in recent years. Employers now carry a positive duty to prevent it, workers have more than one forum to complain to, and the remedies run from orders that the conduct stop to compensation for harm done. This guide sets out what workplace sexual harassment is, the positive duty on employers, where a complaint can go, and the remedies available in New South Wales.
By Aaron Kernaghan · Published 30 August 2026
A shift from reacting to preventing.
For a long time the law responded to sexual harassment after it happened. Recent reforms shifted the focus to prevention, placing a positive duty on employers to take reasonable steps to eliminate sexual harassment at work, rather than only responding to complaints. That change, and a wider set of forums and remedies, has given workers more ways to act and employers more reason to prevent.
This is general information, not advice on your matter, and it is a sensitive subject. The right path depends on the facts, on your system, and on what outcome you want, whether that is stopping the conduct, leaving safely, or seeking compensation. Support is available, and getting advice early helps you choose the forum and remedy that fit your situation.
What is workplace sexual harassment?
Sexual harassment is unwelcome conduct of a sexual nature that a reasonable person would anticipate might make the recipient feel offended, humiliated or intimidated. It includes unwelcome touching, sexual comments or jokes, suggestive messages or images, repeated unwanted advances, and displays of sexual material. It does not have to be repeated, and it does not depend on the person intending harm; the test is whether the conduct was unwelcome and had that character.
It also does not depend on the harasser being a manager. Sexual harassment can come from a colleague, a client, or a customer, and the workplace obligations extend to conduct connected with work, not only conduct in the office. The breadth of the definition means many kinds of behaviour that were once brushed off as banter can amount to sexual harassment in law.
What is the positive duty on employers?
The positive duty requires employers to take reasonable and proportionate steps to eliminate sexual harassment, sex discrimination and related conduct, so far as possible. It is a proactive obligation to prevent harm, not just a duty to respond once a complaint is made. That means having proper policies, training, reporting channels, and a culture that does not tolerate the conduct, and actually acting on problems.
For workers, the positive duty matters because an employer who ignored it is exposed. An organisation that took no steps to prevent sexual harassment, or ignored known problems, is in a weaker position when a complaint is made and can face regulatory action as well as a claim. The duty has made prevention a legal obligation, not just good practice.
Where can you make a complaint?
There is more than one path, and which fits depends on your system and your goal. A worker can complain to their employer internally, and can also take the matter to an external forum. For national system workers, the Fair Work Commission can deal with sexual harassment, including stop orders, and anti-discrimination bodies can handle complaints. For state system workers, the NSW Industrial Relations Commission now has jurisdiction, as our guide on stop orders explains.
Anti-discrimination law provides another route, through the state and federal human rights bodies, which conciliate complaints and can refer them on. Because the forums overlap and each has its own rules and deadlines, choosing the right one for your situation is worth advice. The choice often turns on whether you want the conduct stopped, want compensation, or want a formal finding.
What remedies are available?
The remedies range from forward-looking orders to compensation. A stop order can require the conduct to cease and the workplace to change, which suits a worker who is still in the job. Compensation can be awarded for the harm caused, including for the effect on the person's health, wellbeing and earnings, through the discrimination and workplace forums. In some cases an apology or a change to policy is part of the outcome.
Which remedy fits depends on what has happened and what you want. A worker still exposed to the conduct may want it stopped; a worker who has left, or suffered serious harm, may seek compensation. The forums can offer different remedies, which is another reason the choice of path matters. Our guide on stop orders covers the preventive remedy, and compensation runs through the discrimination and workplace systems.
What should you do if you are being harassed at work?
Where it is safe, keep a record of what happened, when, and who saw it, because contemporaneous notes are powerful evidence. Report the conduct through your employer's process if you can, which both gives the employer a chance to act and creates a record. If the employer does not act, or you do not feel safe using the internal process, an external complaint is available, and support services can help you decide.
This is a difficult experience, and looking after your wellbeing comes first. Support is available through workplace and community services, and you do not have to decide everything at once. Getting advice early helps you understand your options, protect any deadlines, and choose the forum and remedy that fit what you want, without pressure to pursue a path that is not right for you.
Primary sources: the positive duty and sexual harassment protections sit across the Fair Work Act 2009 (Cth), the Sex Discrimination Act 1984 (Cth), and the Anti-Discrimination Act 1977 (NSW), with the NSW Industrial Relations Commission's expanded jurisdiction under the Industrial Relations Act 1996 (NSW). Decisions are searchable on JADE. This is a sensitive topic; support is available if you have been affected.
Common questions
What is workplace sexual harassment?
Unwelcome conduct of a sexual nature that a reasonable person would anticipate might make the recipient feel offended, humiliated or intimidated. It includes unwelcome touching, sexual comments or jokes, suggestive messages or images, and unwanted advances. It does not have to be repeated, and it does not depend on the person intending harm; the test is whether the conduct was unwelcome.
What is the positive duty on employers?
A legal obligation on employers to take reasonable and proportionate steps to eliminate sexual harassment, sex discrimination and related conduct, so far as possible. It is proactive, not just a duty to respond to complaints, and it requires proper policies, training, reporting channels and a culture that does not tolerate the conduct. An employer who ignored it is exposed.
Where can you complain about workplace sexual harassment in NSW?
There is more than one path. You can complain internally to your employer, and externally to the Fair Work Commission for national system workers or the NSW Industrial Relations Commission for state system workers, as well as through state and federal anti-discrimination bodies. The right forum depends on your system and whether you want the conduct stopped, compensation, or a formal finding.
What remedies are available for sexual harassment at work?
They range from forward-looking stop orders, which require the conduct to cease and the workplace to change, to compensation for the harm caused, including the effect on health, wellbeing and earnings. In some cases an apology or a change to policy is part of the outcome. Which remedy fits depends on what happened and what you want.
What should you do if you are being harassed at work?
Where it is safe, keep a record of what happened, when, and who saw it. Report the conduct through your employer's process if you can, which gives the employer a chance to act and creates a record. If the employer does not act or you do not feel safe, an external complaint is available. Your wellbeing comes first, and support services can help you decide.
To speak to a workplace lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, Special Counsel at Good Legal Lawyers, as at 30 August 2026. It is general information and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The law changes and procedure varies from case to case. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More commentary by Aaron Kernaghan.