Every Australian employer has a legal obligation to keep their workplace free from bullying, discrimination and harassment. These are not just HR buzzwords — they are distinct legal concepts with distinct liability frameworks, each capable of producing a regulatory investigation, a Fair Work Commission proceeding, or a civil claim against your business.
This article explains what each concept means under Australian law, how they interact, what the Respect@Work reforms changed for employers, and what practical steps reduce your exposure. It covers:
- what constitutes workplace bullying and how it differs from reasonable management action
- what discrimination is and which protected attributes matter
- sexual harassment — including the expanded obligations on employers since 2022
- the psychosocial safety duty under work health and safety law
- what to do when an incident arises
Workplace bullying
Under s 789FD of the Fair Work Act 2009 (Cth), a worker is bullied at work when a person or group of people repeatedly behave unreasonably towards the worker, and that behaviour creates a risk to health and safety. Two elements must both be present: the conduct must be repeated, and it must pose a genuine health and safety risk.
Examples of conduct that can constitute bullying include:
- aggressive, intimidating or threatening behaviour
- humiliating or demeaning comments directed at a worker
- deliberately excluding or isolating someone from workplace activities
- spreading false or malicious information about a worker
- withholding information or resources so the worker cannot perform their role effectively
A single incident, while not bullying in the technical sense, is not something to ignore — it may constitute harassment, misconduct, or a WHS risk in its own right, and a pattern of single incidents from the same person will meet the "repeated" threshold.
The line between bullying and management
One of the most common points of confusion for employers is where performance management ends and bullying begins. Section 789FD expressly excludes reasonable management action carried out in a reasonable manner. You can counsel poor performance, issue written warnings, restructure roles, and make work allocation decisions without crossing into bullying territory — provided the action is genuinely reasonable and is carried out proportionately and procedurally fairly. Management action that is disproportionate, targeted at a particular person for personal reasons, or delivered in a deliberately humiliating way can still constitute bullying even if there was a legitimate underlying reason.
Stop-bullying orders
A worker who believes they are being bullied at work can apply to the Fair Work Commission (FWC) for an order to stop the bullying under s 789FC of the Fair Work Act 2009 (Cth). If the FWC is satisfied that bullying has occurred and there is a risk it will continue, it may make any order it considers appropriate to prevent it recurring under s 789FF. The FWC cannot order compensation under this mechanism, but the orders it can make — including requiring policy changes, monitoring arrangements, or changes to work allocation — carry significant practical weight for a business.
Workplace discrimination
Discrimination occurs when someone is treated less favourably than another person in comparable circumstances because of a personal attribute, or when a requirement is applied equally to everyone but disadvantages people with a particular attribute without reasonable justification. The second form is sometimes called indirect discrimination, and it can be easy to miss because the rule on its face looks neutral.
Australian federal law prohibits workplace discrimination on a range of protected attributes across three main Acts:
- Sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding — protected under the Sex Discrimination Act 1984 (Cth)
- Age — protected under the Age Discrimination Act 2004 (Cth)
- Disability — including physical, intellectual and psychiatric disability — protected under the Disability Discrimination Act 1992 (Cth)
State and territory legislation adds further attributes in each jurisdiction. As a practical matter, if you are making a workplace decision that turns on any personal characteristic of the worker — rather than on their work — you should consider whether it may trigger one of these Acts.
Direct and indirect discrimination in practice
Direct discrimination is usually straightforward to identify: paying a worker less because of their sex, or refusing to promote someone because of their age, is direct discrimination on its face. Indirect discrimination requires more careful analysis. A blanket requirement that all workers attend mandatory weekend shifts may seem neutral, but if it is not reasonably justified and it disproportionately disadvantages workers with family responsibilities or certain religious observances, it may constitute indirect discrimination under state or federal law. The question is always whether the requirement is reasonable in the circumstances.
Sexual harassment
Sexual harassment is any unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated that the conduct could make the other person feel offended, humiliated or intimidated. It covers a wide range of behaviour — from unwanted physical contact and explicit remarks, to repeated requests for dates and sexualised messages — and it does not require that the person targeted respond in any particular way.
Under s 527D of the Fair Work Act 2009 (Cth), sexual harassment in connection with work is expressly prohibited. A worker who experiences sexual harassment at work can apply to the FWC for a stop sexual harassment order under s 527J. The FWC must commence dealing with such an application within 14 days of it being filed.
Sexual harassment is also classified as serious misconduct under reg 1.07 of the Fair Work Regulations 2009. This means that in appropriate circumstances, an employer can terminate the offending employee without notice — the ordinary notice entitlement does not apply.
The Respect@Work reforms and the positive duty
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 made the most significant changes to employer obligations in this space in decades. Two changes stand out for employers.
First, s 47C of the Sex Discrimination Act 1984 (Cth) now imposes a positive duty on employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible, conduct that the Act prohibits — including sexual harassment, harassment on the grounds of sex, and victimisation. This is a shift from a reactive model (respond when something goes wrong) to a proactive one (take steps before something goes wrong). Compliance is no longer satisfied by simply having a policy that sits in a drawer.
Second, s 28M of the Sex Discrimination Act 1984 (Cth) now expressly prohibits conduct that results in a workplace environment that is hostile on the grounds of sex — that is, offensive, intimidating or humiliating on the basis of a person's sex or related characteristics. This captures systemic or cultural problems that might not involve a single identifiable act of harassment but nonetheless produce an environment that workers cannot reasonably be expected to tolerate.
The Australian Human Rights Commission has compliance and enforcement functions in relation to the positive duty.
The work health and safety dimension
Workplace bullying, discrimination and harassment are also work health and safety issues. Under the model WHS laws adopted across most Australian states and territories, a PCBU must, so far as is reasonably practicable, eliminate psychosocial hazards in the workplace — and where elimination is not reasonably practicable, minimise them. Bullying and harassment are among the psychosocial hazards explicitly contemplated by Safe Work Australia's Model Code of Practice: Managing Psychosocial Hazards at Work.
This creates an obligation that is separate from and in addition to the Fair Work Act and anti-discrimination legislation. A WHS regulator can investigate and prosecute a failure to manage psychosocial hazards regardless of whether a worker has made a formal complaint. Penalties for breaching the primary duty of care under the model WHS laws are substantial.
Where businesses typically go wrong
Having a policy but not enforcing it
The most common mistake is drafting an anti-bullying and anti-harassment policy and assuming the work is done. Courts and regulators look at whether the policy was communicated clearly to workers, whether managers understand what it requires, and whether complaints have been investigated and acted on promptly. A policy that exists on paper but is not lived in practice provides limited protection to the employer.
Treating all complaints as HR matters
When a complaint involves potential legal liability — particularly a sexual harassment complaint — treating it as a purely internal HR matter without legal input creates risk. Decisions about investigation methodology, confidentiality obligations, and what outcome to pursue can have significant legal consequences. Getting legal advice early is cheaper than fixing procedural errors later.
Conflating bullying with ordinary conflict
Not every interpersonal disagreement is bullying. Over-characterising ordinary workplace friction as bullying can undermine legitimate management authority and create its own liability issues. The key questions are whether the conduct is repeated, whether it is unreasonable having regard to all the circumstances, and whether it creates a real risk to health and safety — not whether someone is upset.
Failing to investigate third-party harassment
Employers can be liable for harassment directed at their workers by clients, customers, or contractors. The Respect@Work changes make clear that the positive duty extends to conduct in connection with work, not just conduct by other employees. Businesses in customer-facing industries should have a mechanism for workers to report harassment from third parties, and should take it seriously when it is reported.
How Artificer Legal can help
If you are dealing with a complaint, investigation, or claim — or if you want to get ahead of the obligation rather than react to it — Artificer Legal can assist at every stage. Our employment lawyers typically work through the following steps with clients:
- Review current policies and practices against the requirements of the positive duty under s 47C of the Sex Discrimination Act 1984 (Cth) and the psychosocial hazard obligations under the model WHS laws — identifying specific gaps rather than providing generic advice.
- Advise on investigation design when a formal complaint has been made — including questions about procedural fairness to the respondent, confidentiality obligations to all parties, and whether an external investigator is appropriate.
- Advise on disciplinary outcomes in light of the serious misconduct classification of sexual harassment and any relevant enterprise agreement or Award obligations — so that any termination decision is defensible.
- Represent your business in FWC proceedings for stop-bullying or stop-sexual-harassment orders, including in the conciliation phase where most of these applications resolve.
- Develop proportionate prevention measures that satisfy the reasonable and proportionate test under s 47C — training programs, reporting mechanisms, and management protocols designed for a business of your size and industry.
Key takeaways
The legal framework for workplace bullying, discrimination and harassment in Australia involves multiple overlapping regimes, and the Respect@Work reforms have significantly raised the bar for what employers are expected to do before anything goes wrong. The shift to a positive duty means that reactive compliance is no longer enough.
Key points to carry forward:
- Bullying under the Fair Work Act 2009 (Cth) requires repeated unreasonable conduct that creates a health and safety risk — reasonable management action is excluded, but the line matters.
- Discrimination law covers a broad range of protected attributes across three federal Acts, plus state legislation — direct and indirect forms are both unlawful.
- Sexual harassment is serious misconduct under the Fair Work Regulations 2009, meaning dismissal without notice is available in appropriate cases.
- The positive duty under s 47C of the Sex Discrimination Act 1984 (Cth) requires employers to take proactive, proportionate steps to eliminate prohibited conduct — not just respond when a complaint is made.
- The WHS obligation to manage psychosocial hazards operates in parallel and independently of the Fair Work and discrimination frameworks.
- Policies matter, but only if they are communicated, understood and enforced.