Bullying and sexual harassment

What is bullyi​ng?

Bullying is usually repeated unreasonable behaviour against a person. It can be from a supervisor, manager or colleague. Examples include:

• being harassed at work
• getting nasty comments about your personality or appearance
• being teased, belittled or demeaned
• inappropriate touching, such as pushing or shoving
• being treated differently or unfairly compared to other staff
• being allocated inappropriate or unfair workloads and tasks
• being deliberately set impossible deadlines or workloads, and set up to fail
  
• being excluded from workplace activities.

 The Fair Work Act 2009 (Cth) defines bullying as:

• an individual or group of individuals repeatedly behaving unreasonably towards a worker (or a group of workers), and
• behaviour that creates a risk to health, including mental health and safety.

For more information, see Bullying on the Fair Work Commission website.

What is reasonable management action?

A person’s behaviour is not considered bullying if it is reasonable management action carried out in a reasonable manner.

Reasonable management action may include:

• performance management processes
• disciplinary action for misconduct, including investigating alleged misconduct
• informing a worker about unsatisfactory work performance or inappropriate work behaviour
• asking a worker to perform reasonable duties in keeping with their job
• maintaining reasonable workplace goals and standards.

If a person's behaviour is not management action, or their actions are not carried out in a reasonable manner, their behaviour could still be considered bullying.

For more information, see Reasonable management action on the Fair Work Commission website.

If you believe you have been bullied at work, you should get legal advice.

What is harass​ment?

Generally, harassment is behaviour that is unwanted and that makes a person feel intimidated, offended or humiliated. Example of harassment include:

• repeatedly sending text messages or emails that insult a person or are sexually explicit or suggestive
  
• making derogatory comments about a person's gender, race or disability
• displaying derogatory pictures or screen savers
• asking intrusive questions about someone's personal life, including their sex life.

​What is sexual harass​ment?

Sexual harassment is an unwelcome sexual advance or request for sexual favours, or unwelcome conduct of a sexual nature that would make a reasonable person feel offended, humiliated and/or intimidated. It can include a one-off incident or repeated behaviour.

Examples of sexual harassment include:

• unwelcome touching, hugging or kissing
• staring or leering
• sexually suggestive comments and jokes
• referring to co-workers using suggestive or sexualise names
• unwanted invitations to go out on dates
• requests for sex
• intrusive questions about a person’s private life or body
• sexually explicit emails or text messages
  
• a hostile workplace environment.
  

It is illegal to sexually harass someone in the workplace. 

Some forms of sexual harassment are also criminal offences. If you have immediate concerns for your safety, you should contact the police.

If you are a worker who has been sexually harassed, you can get free legal advice from the Respect at Work Legal Service. 

For more information, see:

• Quick guide - Sexual Harassment on the Australian Human Right Commission website
• Sexual harassment on the Anti-Discrimination NSW website and
• Issues we help with - Sexual Harassment on the Fair Work Commission website.

What obligations do employers have to prevent sexual harassment?

It is illegal to subject a person to a hostile work environment, including a work environment that is offensive, intimidating or humiliating on the grounds of that persons’ sex.

Employers have a legal responsibility to take all reasonable steps to prevent sexual harassment. From 11 December 2023, an employer could be liable for conduct involving sexual harassment of their employees if they have not taken enough steps to prevent this from happening.

A court would consider:

• the seriousness of the conduct
• whether it was continuous or repetitive
• the role, influence or authority of the person engaging in the conduct.  

Can bullying or harassment b​e a criminal offence?

Yes. Any bullying or harassment involving physical violence, indecent assault, stalking, intimidation or threats of violence, may be a criminal offence. 

If you believe you might be at risk of, or have already suffered physical assault, indecent assault or verbal intimidation involving threats of violence at work, you can:

• report the matter to the police
• apply to the Local Court for an Apprehended Personal Violence Order. 

For more information, see the Apprehended Violence Orders topic. 

If you have concerns about your safety, you should call the police and get legal advice.

Can bullying or harassment be​ discrimination?

Not all bullying is discrimination and unlawful. For bullying to be discrimination it must be based on a person's background or personal characteristics, such as their gender identity, race, age, marital status, sexual orientation, disability, pregnancy, breastfeeding, intersex status, or carer's or family responsibilities. These are grounds that are set out in State and Federal anti-discrimination laws.

If you have evidence that the bullying at work is discrimination, you have options available to you. 

For more information, see the Discrimination at work - Frequently Asked Questions page.

If the bullying involves physical violence, threats of violence or stalking or intimidation, it may be a criminal offence. You may be able to apply for an Apprehended Violence Order for your protection.

If you have concerns for your immediate safety, you should contact the police.

What can I do if I am being bu​llied or harassed at work?

If you are being bullied or harassed at work, you may have a number of options to resolve the situation depending on your circumstances.

You are protected under the Fair Work Act (2009) for making a complaint. 

Generally, you should try to resolve the matter internally. This may mean:

• talking to the person (or people) directly, if it is safe to do so
• speaking with your supervisor
  
• reporting your matter to your union (if you are a member) or a Work Health Safety Officer
  
• following the formal grievance procedure in your workplace
• making a formal complaint in writing about the behaviour. You are protected under the Fair Work Act for making this type of complaint.

You should try to communicate in writing. If you have a meeting or conversation you can keep written records of conversations or have someone with you for support and as a witness.

If your situation does not improve, there may be agencies outside your workplace to help you. Where you can go will depend on the bullying or harassing behaviour. You may be able to:

• apply for an anti-bullying order to the Fair Work Commission
• make a discrimination complaint to the Anti-Discrimination NSW or the Australian Human Rights Commission
• complain about a breach of work health safety laws to SafeWork NSW
  
• take other legal action, for example a general protections claim or workers compensation claim.
  

Being bullied or harassed at work can be very upsetting and stressful. If you want counselling or additional support, you can check whether your employer provides free access to a counselling service. You could also visit your GP. If you are injured or become ill due to workplace bullying, see FAQ below 'What if my health is affected?'

For more information, see Workplace bullying on the SafeWork NSW website.

If you are not sure how to respond to bullying or harassment, you should get legal advice. You can get free legal advice from the Respect at Work Legal Service.

Can I report the bullying or ha​​rassment to my employer?

Yes, it is your right under the Fair Work Act 2009 to file a complaint. 

You can discuss your complaint with:

• the person involved
• your supervisor or manager
• the Human Resources Team, if your workplace has one
• your union if you are a member. 

You could also consider filing a grievance. You should have a look at your workplace policies for the process you need to follow. 

If you discuss your complaint at work, it is a good idea to keep notes from all meetings that you attend about what was said, when, where and who was involved.

Being bullied or harassed at work can be very upsetting and stressful. If you want counselling or additional support, you can check whether your employer provides free access to a counselling service. You could also visit your GP.

Can I appl​y for an Apprehended Violence Order?

If you have reasonable fears for your safety because of bullying or harassment in the workplace, you may be able to apply through the Local Court for an Apprehended Personal Violence Order. 

For more information, see the Apprehended Violence Orders topic.

What if I make a complain​t to my employer and things get worse?

If you make a complaint about something that is happening, or has happened, at work and you are being treated worse because you made the complaint, you should consider any workplace policies or processes to deal with the issue, such as complaining to the Human Resources Team, if your workplace has one.

If you are being treated badly as a result of making a complaint about bullying and harassment, you should get legal advice about taking further action, for example, making a general protections dispute application to the Fair Work Commission.

For more information, see the General protections – Frequently Asked Questions.

If the bullying or complaint involves unlawful discrimination, you may also have other options. 

For more information, see the Discrimination at work - Frequently Asked Questions.

What if my health is ​a​ffected?

Bullying or harassment at work can be very stressful and upsetting. You may have been ill, or experienced anxiety or another psychological injury because of bullying or harassment. If this has happened, you might be able to:

• use any sick leave or other leave entitlements you have if you cannot go to work. You can speak to your GP about your health and get a medical certificate
  
• make a claim under an insurance policy if you have not been well enough to work, for example, if you have an income protection policy
  
• apply for workers compensation. You should make a claim immediately and no later than six months from the date of your injury or illness.
  

You should get legal advice about making a workers compensation claim by contacting State Insurance Regulatory Authority by telephone 13 10 50 or online at www.sira.nsw.gov.au.

If you want counselling or additional support, you can find out whether your employer provides free access to a counselling service. You could also visit your GP for a referral to a psychologist.

What if I can't attend wor​k because o​​f stress or anxiety?

If you have an injury or illness because of bullying or harassment at work, such as stress or anxiety, you should speak to your GP. Your GP may be able to offer you treatment or refer you to a psychologist.

You should find out whether your employer provides free access to a counselling service.

You could use any sick leave or other leave entitlements you have accrued to allow you time to recover. You may need to follow your workplace’s usual process of notice and evidence, for example, providing a medical certificate if you take time off work.

Depending on your condition, you may be able to apply for workers compensation. You should do this immediately and no later than six months from the date of your injury or illness.

Before you make a claim, you should get legal advice.

If you want counselling or additional support, you can find out whether your employer provides free access to a counselling service. You could visit your GP for a referral to a psychologist.

Can the Fair Work Ombudsman help wit​h bullying or harassment complaints?

The Fair Work Ombudsman may only be able to help if the bullying or harassment at work involves a breach of your general protection rights under the Fair Work Act 2009 (Cth). They generally will not help with complaints about bullying or harassment where the national laws have not been breached.

Examples of complaints the Ombudsman may assist with include:

• being paid incorrectly
• disputes over certain conditions, for example, your leave entitlements
• unlawful discrimination
• being sexually harassed at work
  
• being bullied or harassed because you made a complaint to a health and safety body outside of your work.

For more information, see Bullying in the workplace on the Fair Work Ombudsman website.​

Can I apply to the Fair Work Com​mission?

If you have been bullied or sexually harassed when working for a constitutionally covered business, and you are still employed there, you can apply to the Fair Work Commission for an order to stop the bullying or sexual harassment.

You should get legal advice about any other options that might apply in your situation, for example, whether you have grounds to file a general protections dispute, or discrimination claim. In most cases, you will only be able to make one type of claim.

If you are a member of the Australian Defence Force you can't apply to the Fair Work Commission for an order to stop bullying. You should get legal advice about your options.

What is a constitutionally covered​ business?

You can only apply to the Fair Work Commission for an order to stop bullying or sexual harassment if you are a worker and the bullying occurred whilst you were working for a constitutionally covered business.

​A constitutionally covered business includes:

• a business that is a constitutional corporation, for example, a Pty Ltd company. This includes foreign corporations and trading or financial corporations formed within the limits of the Commonwealth.
• the Commonwealth, for example, a Federal government department (members of the Defence force are not covered)
  
• a Commonwealth authority, for example, the Federal Court of Australia or the Australian Federal Police
  
• a body corporate incorporated in a Territory, or
  
• a business or organisation conducted principally in a Territory or Commonwealth place.
  

Businesses that are not considered constitutionally covered businesses include: 

• sole traders and partnerships
• amateur sporting organisations
• charitable organisations, unless a significant part of their activity is selling goods or services for profit
• State governments, for example, the NSW Department of Education.

For more information, see Constitutional corporations on the Fair Work Commission website.

If you are not sure whether you can apply to the Fair Work Commission for an order to stop bullying or sexual harassment, you should get legal advice.

Am I classified as a worker?

A worker includes:

• an employee
• a contractor or subcontractor
• a person employed by a labour hire company who is working at a particular business or organisation
• an outworker (people who work away from the workplace, such as at home
• an apprentice or trainee
• a work experience student, or
• a volunteer.

What can I do if I am being sexually harassed at work? 

If you are being sexually harassed at work you can: 

• ask your co-workers and/or manager to help you make an internal complaint
• report the conduct to management or human resources
• contact your union 
• make a complaint with Anti-Discrimination NSW or the Australian Human Rights Commission
  
• make a workers’ compensation claim with your employer if the sexual harassment has caused you physical or mental injury or illness
  
• report the workplace sexual harassment to a work health safety regulator. 

You can apply to the Fair Work Commission to:

• dispute resolution, mediation or conciliation conference
• make a “stop sexual harassment order”.          

Can I apply for an order to stop bu​llying or sexual harassment if I work for a sole trader or partnership?

If you work for a sole trader or partnership, you can only apply to the Fair Work Commission for an order to stop bullying if your employer does business in:

• an Australian Territory, such as the Northern Territory, Jervis Bay, the Australian Capital Territory, Christmas Island and Norfolk Island, or
  
• a Commonwealth place, a place used by the government of Australia for public purposes, for example, airports and office blocks used by a government department.
  

Can I apply to the Fair Work Commission for an order to stop bullying or sexual harassment if I work for the State or Local government?

No, you can't apply to the Fair Work Commission for an order to stop bullying or sexual harassment if you work for the State or Local government.     

​How do I apply to the Fair Work C​​ommission for an order to stop bullying or sexual harassment?

You can apply to the Fair Work Commission by:

• completing a Form F72 - Application for an order to stop bullying, or 
  
• completing a Form F72A - Application for an order to stop sexual harassment that happened before 6 March 2023, or
  
• completing a Form F75 - Application for an order to stop sexual harassment and/or resolve a dispute about sexual harassment that happened or started on or after 6 March 2023.
  

You need to attach any supporting documents to your application, and pay an application fee. If you can’t afford to pay the fee, you can apply for a waiver by completing a Form F80 – Waiver of application fee.

For more information about the forms, fees and process, see the Fair Work Commission website:

• Bullying
• Sexual harassment

Before you file your application, you should get legal advice about any other options that might be available in your situation, for example, whether you have grounds to file a general protections dispute, or discrimination claim. In most cases, you will only be able to make one type of claim.

What happens after my ​application is sent to the Fair Work Commission?

The Fair Work Commission will check the application and will contact you to explain the process.

The Commission will serve (send) a copy of the application on:

• your employer
• any individuals at work who you say have bullied or sexually harassed you
• the employer of the person(s) who bullied or sexually harassed you, if this person is not your employer.

The Commission will contact the parties named in the application. The respondent to the application will need to respond within seven days.

Following this, the Commission will gather information about the application and can either refer the case to mediation (also called a conference) or a hearing.

The Commission may join other parties to the dispute if there are other aggrieved persons.

If there is a jurisdictional issue raised by your employer, for example, an argument that the Commission does not have power to deal with the issue, the Commission may call you and your employer to appear before the Commission so that it can make a decision about whether to go ahead.

For more information about sexual harassment, see How we deal with sexual harassment cases on the Fair Work Commission website. 

For more information on bullying, see The process to resolve workplace bullying on the Fair Work Commission website.     

What happens at mediat​ion?

If you apply to the Fair Work Commission for an order to stop bullying or sexual harassment, you will be referred to mediation (also called a conference).

The mediation is voluntary. This means that you and your employer can choose whether to attend. Mediation will only happen if you both agree. 

If the mediation goes ahead, the Commission will provide an independent Mediator to help you and your employer:

• identify the issues in dispute, and
  
• reach an agreement to resolve the issues.
  

The mediation process is confidential and is conducted in private.

During the mediation, the Mediator can make recommendations and express their opinion, however, they decide how your case should proceed if it is not resolved.

If you or your employer do not want to go to mediation, or you can't reach an agreement at mediation, your application will be listed for a hearing.

For more information, see Conciliation for bullying at work on the Fair Work Commission website.

What happens if my case goes to​ a hearing at the Fair Work Commission?

If you or your employer do not want to go to mediation, or you can't reach an agreement at mediation, your application will be listed for a hearing. 

Before this happens, a Member from the Fair Work Commission will usually call you and your employer together for a preliminary conference to make directions about how the case will go ahead.

At the preliminary conference the Member may decide to:

• try and resolve the matter by conciliation on the day or on another day
  
• make consent orders, if you and the other party reach an agreement at conciliation
  
• make orders for either you or your employer to attend the Commission
  
• make a direction for the case to go to a final hearing
  
• make interim orders, for example, stopping your employer recruiting for your position.
  

What happens​ at a he​aring?

If your case goes to a final hearing at the Fair Work Commission, you and your employer will have to prepare your evidence and make submissions (arguments) about your case before the Member.

Following the hearing, the Member will either:

• dismiss your application, or
  
• make orders to prevent bull​ying and/or sexual harassment.
  

Hearings are usually open to the public, but the Commission can make confidentiality orders in some cases. 

If you are not sure how to prepare for the final hearing, you should get legal advice.   

What orders can be made by the Fa​ir Work Commission to prevent bullying or sexual harassment?

The Fair Work Commission can make any orders it considers appropriate to prevent you from being bullied or sexually harassed, including orders that:

• persons must stop a certain behaviour
• persons must comply with your employers anti-bullying or sexual harassment policy
  
• your employer must provide information and additional support and training to workers
• your employer must review their anti-bullying or sexual harassment policy.

The Commission cannot order your employer or another person to pay you compensation for the bullying.

For more information, see Outcomes on the Fair Work Commission website.

Can the Fair Work Commission order my​ employer to pay me compensation for bullying or sexual harassment?

The Fair Work Commission can't order your employer or another person to pay you compensation for being bullied or sexually harassed.

If you want to make a claim for compensation, for example, if you suffered an injury as a result of bullying, there may be other legal options available to you. You should get legal advice about your situation.

Can the Fair Work Commission make​ a costs order in bullying or sexual harassment cases?

The Fair Work Commission has the same powers to order costs in anti-bullying or sexual harassment applications as in other applications.

For more information, see Costs on the Fair Work Commission website.

​What happens if I am not happy with ​the decision of the Member in my anti-bullying or sexual harassment application?

If you are not happy with a decision of the Member, you may be able to appeal the decision within 21 days, with the Commissions permission, to the Full Bench of the Fair Work Commission.

The Full Bench of the Commission: 

• must allow the appeal if it is in the public interest to do so, or
• can allow the appeal if there is a mistake of law or fact in the original decision.

For more information, see Appeal a decision or order on the Fair Work Commission website.

Before you want to file an appeal, you should get legal advice.  

What happens if my employer does​ not follow an order of the Fair Work Commission?

If your employer or any other person is not complying with an order to stop bullying or sexual harassment, you may be able to apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia for an order that the person must pay a financial penalty. This type of application is called an application for breach of a civil remedy provision.

It must be made within six years from the contravention of the order.

If your employer or any other person is not complying with an order to stop bullying or sexual harassment, you should get legal advice.

Can I apply for an anti-bullying or sexual harassment or​der if I have since left the workplace?

If you have left the workplace, for example, if you resigned or were dismissed, you can't apply for an order to stop the bullying or sexual harassment.

An order in relation to workplace bullying or sexual harassment may only be made by the Commission where it finds that there is a risk of the bullying or sexual harassment continuing. In most circumstances, this will mean that an order can’t be made where the worker is no longer in the relationship where the bullying or sexual harassment has occurred.

If you were dismissed or forced to resign you may be able to apply for unfair dismissal or general protections dismissal.

If you are not sure whether you are still employed, you should get legal advice.         

If I apply for an anti-bullying or sexual harassment order a​t the Commission, will it stop me from making another type of legal claim?

Generally, you can't start more than one claim about the same legal problem but you should speak to a lawyer about your options, as it may depend on your circumstances.​