Preventing sexual harassment in the workplace, a significant health and safety risk, has become easier from 11 November, with the Fair Work Commission (FWC) being granted the power to issue ‘stop sexual harassment’ orders.

The FWC can now receive applications directly from a person who is sexually harassed at work to order the behaviour to stop occurring. The jurisdiction will operate similarly to the FWC’s ‘stop bullying’ powers, which commenced seven years ago.

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 for the FWC to make orders to stop sexual harassment in the workplace.

What is sexual harassment?

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

• an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• other unwelcome conduct of a sexual nature in relation to the person harassed; and
• 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. Each occasion represents a serious risk to health and safety.

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:

• they are a ‘worker’ (as defined in 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);
• they reasonably believe they have been sexually harassed; and
• 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 the 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).

It is unlikely a worker will make an application if the worker no longer has a connection to the workplace, for example because the worker has resigned or 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 prospect 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 named in the application must file a response within 7 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; and
• there is a risk that the sexual harassment will continue.

The FWC does so by making factual findings about what occurred and assess 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 an employer’s changes to workplace policies and reporting procedures, and training of staff.

What orders can the FWC make?

The purpose of the stop sexual harassment jurisdiction is to prevent sexual harassment from occurring. Given this purpose, 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; and
• training staff on appropriate workplace behaviour.

A failure to comply with the orders can result in penalties.