Fair Work Commission’s power to stop sexual harassment commences

The Fair Work Commission (FWC) now has the power to make 'stop sexual harassment' orders. This power means a worker who is sexually harassed at work can apply to the FWC for orders to stop the sexual harassment from continuing. The jurisdiction will operate similarly to the FWC’s ‘stop bullying’ powers which commenced on 1 January 2014.

Background

On 11 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Act) commenced operation. The Act introduced six of the recommendations made in the Australian Human Rights Commission (AHRC) report, ‘Respect@Work: A National Inquiry into Sexual Harassment in the Australian Workplace’. This included expanding the Fair Work Act 2009 (FW Act) anti-bullying jurisdiction to allow the FWC to stop sexual harassment in the workplace.

For more information on:

• the legislative changes introduced by the Act, see our article: Government introduces Respect@Work legislation
• key implications and steps for employers to consider in response to the Act and to prevent sexual harassment, see our articles: Employer obligations in response to the Respect@Work legislation and Respect@Work: The Government's response.

What is sexual harassment?

The FW Act adopts the meaning of “sexual harassment” in section 28A of the Sex Discrimination Act 1984, being:

“ (a) an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.”

Unlike bullying, sexual harassment can occur as a one-off incident, and repeated acts are not necessary for a preventative order to be made.

Who can apply for an order to stop sexual harassment?

Like the stop bullying orders, a person can apply for a stop sexual harassment order if:

1. they are a “worker” (as defined in the Work Health and Safety Act 2011, including employees, contractors, an employee of a contractor, a student on work experience and, in some instances, volunteers, but excluding a member for the Defence Force)
2. they reasonably believe they have been sexually harassed
3. the sexual harassment occurs at work in a constitutionally-covered entity (including a constitutional corporation, a Commonwealth authority and a business or undertaking).

When can an application be made?

There is no timeframe to make an application. However, for the FWC to make a stop sexual harassment order, it must be satisfied that there is a risk the worker will continue to be sexually harassed at work by the individual(s) named in the application.

This means a worker can apply for a stop sexual harassment order if a particular incident of sexual harassment has stopped, as long as the worker can show there is a future risk that the worker will be sexually harassed at work by the relevant individual(s).

A worker will not be able to make an application if the worker no longer has a connection to the workplace, for example, because the worker has resigned or has been dismissed. This is because, in these circumstances, the FWC is unlikely to be satisfied of a future risk of sexual harassment at work, and will likely dismiss the application as there are no reasonable prospects of success.

What happens once an application is made?

The FWC must begin to deal with the application within 14 days from the day the application was lodged, and the employer must file a response within seven days from being served with the application. It is optional for the individual(s) named in the application to lodge a response.

The FWC has discretion to manage the application in the following ways:

• contacting the parties involved;
• conducting a conference;
• holding a formal hearing; or
• referring the matter to a work health and safety regulator and continuing to deal with the matter in the FWC.

How will the FWC determine if any orders should be made?

The FWC must objectively assess whether:

• it is satisfied that the sexual harassment has occurred at work and in relation to the worker
• there is a risk that the sexual harassment will continue.

The FWC does so by making factual findings about what occurred and assessing if the conduct meets the elements of sexual harassment. The FWC does not need to investigate the concerns, and can form a conclusion based on the case presented by the parties.

Importantly, in determining whether to make an order, the FWC may consider any targeted strategies implemented by employers to prevent sexual harassment. This includes changes to workplace policies and reporting procedures, and training staff.

What orders can the FWC make?

The purpose of the stop sexual harassment jurisdiction is to prevent sexual harassment from occurring. Given this, the FWC can make any preventative order it considers appropriate, but cannot make punitive or compensatory orders.

Orders that can be made include:

• one or more individuals to stop specified behaviour
• certain individuals not contact each other or attend the same premises
• changes to working arrangements
• employers to regularly monitor behaviours of one or more individuals
• review of workplace policies
• training staff on appropriate workplace behaviour.

Key takeaways

The FWC’s power to make stop sexual harassment orders has commenced. All employers should be taking proactive steps to ensure that their policies and procedures for preventing harassment are being implemented at the workplace. Please see our previous articles (linked above) for suggested steps to prevent sexual harassment at the workplace from occurring.

If you have any questions about this article or any other workplace issues, please speak to us or contact us here.

Authors: Michael Selinger & Adrian Zagami

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Michael Selinger

Adrian Zagami

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