The Law Handbook 2024

990 Section 11: Rights, activism and fair treatment at work took reasonable precautions to prevent the conduct from occurring (s 110). This means an employer or principal is taken to have done any discriminatory act that their employees or agents have done and is responsible for any remedy (e.g. payment of compensation). Therefore, a person can bring a complaint against their employer or the person who did the relevant act, or both. Exceptions There are a number of exceptions to the conduct covered above, some of which are outlined below (see ‘Exceptions in the Equal Opportunity Act’, below). It is important to check whether there is an exception that applies to your situation as these mean that the conduct, while being discriminatory, is not unlawful. Sexual harassment Sexual harassment is an unwelcome sexual advance, an unwelcome request for sexual favours, or any other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated or intimidated (s 92). Sexual harassment can be a range of different actions; for example, jokes, unwanted touching or kissing, using sexually explicit computer screen savers or posters, requests for sexual favours, and sending emails or SMS messages with sexual content. The Equal Opportunity Act prohibits sexual harassment in employment, clubs and local government, and in the provision of goods and services and accommodation. The Equal Opportunity Act also prohibits sexual harassment in relation to industrial organisations, qualifying bodies, partnerships and educational institutions. Volunteers and unpaid workers are covered by sexual harassment laws because, for the purposes of the prohibition of sexual harassment, the definition of ‘employee’ includes volunteers and unpaid workers. Sexual harassment in employment includes harassment by employees towards each other (i.e. between co-workers or colleagues), by the employer towards an employee, or by the employee towards their employer. It also includes sexual harassment by or of job applicants, volunteers, and between people in common workplaces. A ‘common workplace’ is any place that a person attends for the purposes of carrying out any function(s) in relation to their employment, occupation, business, trade or profession. A common workplace need not be the person’s principal place of business or employment. It is not necessary for both parties to be employed by the same employer, provided the harassment occurs in a place that is a workplace of both of them. As with discrimination, employers are vicariously liable for sexual harassment conducted by any employees or agents unless they can demonstrate that they took reasonable precautions to prevent the sexual harassment from occurring (ss 109–110). Under the Equal Opportunity Act (s 15), all duty holders, including employers, have a positive duty to take all reasonable steps to prevent sexual harassment at work. The positive duty applies to employers of all sizes and covers all types of workers, including full-time, part-time and casual employees, agents and contract workers, trainees and apprentices, and volunteers and unpaid workers. For further information about positive duty, see ‘Positive duty’, below. The VEOHRC provides a guideline that outlines six minimum standards that employers must meet to comply with their positive duty to eliminate sexual harassment. This guideline may be considered in judicial proceedings when deciding whether employers have complied with the law. The VEOHRC has also created an interactive online sexual harassment support and response tool, and a quick guide for employers about their obligations under the law. These resources are available on the VEOHRC’s website (www. humanrights.vic.gov.au) . Other conduct covered by the Equal Opportunity Act Victimisation Under the Equal Opportunity Act (s 103), victimisation is unlawful. Victimisation means subjecting a person to (or threatening to subject a person to) any detriment because the person (or someone the person is associated with) has done anything, or is believed to intend to do something, in accordance with the Equal Opportunity Act (s 104). Victimisation includes: • making a complaint or allegation that there has been a breach of the Equal Opportunity Act; • bringing a dispute to the VEOHRC or bringing proceedings under the Equal Opportunity Act;