Sex discrimination, sexual harassment and victimisation are unlawful in construction — and since 2023 employers and principal contractors have a positive duty to actively prevent them, including harassment from other subbies or visitors, not just their own crew. Here is what the law covers, who it protects, and how to enforce it.
What the law prohibits
The Sex Discrimination Act 1984 (SDA) makes it unlawful in a work context to discriminate on sex, pregnancy, potential pregnancy, breastfeeding, family responsibilities, sexual orientation or gender identity, and prohibits sexual harassment, sex-based harassment, a hostile workplace environment on the ground of sex, and victimisation. On site that catches:
- excluding women from tasks ("too physical") when men are not;
- persistent sexual jokes, body comments or pornographic material in the crib room, and unwanted touching;
- changing someone's shifts, sites or terminating them after they reject advances or complain (victimisation).
State equal-opportunity Acts mirror it.
It covers subbies and labour-hire — not just employees
Crucially, the SDA protects "workers", not just employees — that includes labour-hire and agency temps, apprentices, and many contractors, sole traders and subbies in a work context (a female subcontractor carpenter on a principal's site is covered). The Fair Work Act's discrimination and harassment provisions and the WHS laws likewise reach across the whole site, not just one employer's payroll.
The positive duty (since 2023) — and the principal contractor
This is the shift that matters most for head contractors: the SDA now imposes a positive duty — employers and PCBUs must take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile environments and victimisation, proactively, not just in response to a complaint. And it can extend to third-party conduct — harassment of a worker by other subcontractors, clients or site visitors. For a principal contractor, reasonable measures mean: clear behaviour policies for everyone on site (including subbies and labour-hire), inductions and toolbox talks on expected conduct and reporting, and swift response (removing offenders from site, reviewing contracts). The AHRC enforces the positive duty with enforceable undertakings and compliance orders. In parallel, the WHS psychosocial duty treats sexual harassment and gender-based violence as psychosocial hazards the PCBU must identify and control (isolated amenities, male-dominated crews, no safe reporting channel), backed by the federal WHS (Sexual and Gender-based Harassment) Code of Practice (approved 2025) — and regulators can act even where workers are too afraid to complain.
Enforcement, process and remedies
The pathways: the AHRC (SDA), a state EO commission or tribunal, the Fair Work Commission (adverse action for sex/pregnancy/parental leave, or a stand-alone sexual-harassment application), and the WHS regulator. Time limits: state commissions generally 12 months, the AHRC generally 24 months for SDA matters (with some discretion), and Fair Work's general protections just 21 days for dismissal-related claims. The process is a written complaint → assessment and conciliation (where most matters resolve, in months) → if unresolved, court or tribunal. Remedies: compensation (lost income and contract opportunities, plus hurt and distress), apologies and record corrections, reinstatement (via Fair Work), and orders to change policies, train staff and implement prevention plans; WHS adds improvement and prohibition notices and prosecution.
The reality, in the data
Women are a small minority — the 2021 Census recorded roughly 157,000 women to 911,000 men in building and construction, so many work isolated. The AHRC's 2022 "Time for Respect" survey found 1 in 3 workers (33%) sexually harassed at work in the prior five years — 41% of women versus 26% of men (all-industry, but construction is repeatedly flagged as high-risk). That is the backdrop the positive duty is meant to change.
Pregnancy, parental leave and return to work
It is unlawful to discriminate because someone is pregnant, may become pregnant, or is breastfeeding — refusing to engage them, cutting shifts, giving less-favourable sites, or imposing more onerous safety requirements than men doing equivalent work unless objectively justified. Can a principal refuse a pregnant subbie on site? Almost certainly unlawful pregnancy discrimination — the WHS duty is to risk-assess and adjust the safe work method, not a licence to exclude her; and if a principal pressures a labour-hire firm to "take her off the job", both can be exposed. On return from parental leave, the NES protects the right to the pre-leave position (or an equal one), and it is adverse action to disadvantage someone for taking it — challengeable via Fair Work (21 days) or a discrimination complaint (see Parental Leave & the Self-Employed).
Common mistakes
- Assuming the rules only cover your own employees (they reach subbies, labour-hire and visitors).
- Treating harassment prevention as reactive — the positive duty is proactive.
- A principal turning a blind eye to harassment between subbies (the duty can reach third-party conduct).
- Pulling a pregnant worker off site instead of risk-assessing and adjusting.
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