The Fair Work Commission (FWC) has been given power to make stop orders in relation to sexual harassment in the workplace in line with recommendations from the [email protected] Report (for a summary of those recommendations, see here).
The new powers apply in relation to applications made after 10 November 2021, after a request from the FWC for a short delay in implementation to allow them to be fully ready. The powers replicate the existing anti-bullying jurisdiction of the FWC to permit the FWC to make orders to stop sexual harassment in the workplace.
These powers are intended to afford workers who have suffered workplace sexual harassment with access to a fast, low cost and informal mechanism to deal with complaints. However, the FWC does not have power to order pecuniary payments or compensation – claims for compensation will still have to be pursued separately through the Australian Human Rights Commission and the State / Territory Anti-Discrimination bodies and courts.
A worker who now reasonably believes that he or she has been sexually harassed at work may apply to the FWC for an order to stop and address the sexual harassment.
The new provisions provide that ‘sexually harass’ has the same definition as the Sex Discrimination Act 1984 (Cth), namely, that a person sexually harasses another person if:
- they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- they engage in 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 the anti-bullying jurisdiction, an application may be made by a worker after one occasion or instance of sexual harassment, in acknowledgement that sexual harassment is not always repeated or continuous. Further, the worker is not required to establish a risk to health and safety when making an application concerning sexual harassment, as sexual harassment is by itself a known work health and safety risk.
The FWC may make any order it considers appropriate to prevent the worker from being sexually harassed by an individual or individuals if it is satisfied that:
- the worker has been sexually harassed at work by one or more individuals; and
- there is a risk that the sexual harassment will continue.
Importantly, while the FWC can consider sexual harassment that occurred prior to the commencement of the provisions, it must be satisfied that there is a risk of future harm, so that it is addressing future conduct rather than penalising past conduct. As a result only current, and not former, employees can maintain a claim in this jurisdiction.
As with a stop bullying application, the FWC must take into account:
- any final or interim outcomes arising out of an investigation that is being or has been undertaken by the employer;
- any procedure available to the worker to resolve grievances and disputes (such as internal grievance or complaint procedures); and
- any outcomes arising out of any procedure available to the worker to resolve the grievance or dispute.
The broad range of orders available to the FWC include:
- requiring certain individuals to stop the sexual harassment, including fellow employees, customers/clients and other visitors to the workplace;
- requiring the employer to monitor the behaviour of certain individuals and requiring compliance with employer’s sexual harassment policy; and/or
- requiring the employer to review its sexual harassment policy (if it is considered to be inadequate to address sexual harassment).
The explanatory memorandum implementing these changes also makes clear that previous FWC decisions involving the meaning of ‘at work’ in the anti-bullying jurisdiction remain relevant. There can be a clear and temporal connection to work not only when a worker is performing work (at any time or location), but also when the worker is engaged in some other activity authorised or permitted by their employer (such as work events, coffee breaks, and other activities that are closely connected to work).
Contravention of a stop order
A breach of an order made by the FWC will be a breach of a civil remedy provision which is able to be pursued in the Federal courts, where significant pecuniary penalties can be imposed.
Unfair dismissal for sexual harassment
The Fair Work Act 2009 (Cth) has also been amended to make it clear that, for the purposes of an unfair dismissal claim, conduct that can amount to a valid reason for dismissal includes where an employee sexually harasses another person in connection with the employee’s employment.