In this article, Partner Andrew Tobin, Special Counsel Adele Garnett and Associate John Hickey discuss how victims of sexual assessment in the workplace can now apply to the Fair Work Commission (FWC) for an order to ‘stop sexual harassment’.
From 11 November 2021, the FWC's powers have expanded to include the power to make ‘stop sexual harassment’ orders.
A person can apply to the FWC for an order to stop sexual harassment at their workplace if they:
- are a ‘worker’ as defined in the Work Health and Safety Act 2011 (Cth) (which is very broad and generally captures a person who carries out work in any capacity for another person or entity conducting a business or undertaking);
- are not a member of the Australian Defence Force; and
- reasonably believe that he or she has experienced sexual harassment while working at a constitutionally-covered business (which generally confines the jurisdiction to businesses operating through companies).
This new legislative provision is retrospective in operation, and therefore employees who experienced sexually harassing conduct in their workplace prior to 11 November 2021 may seek an order in the new jurisdiction.
When can a 'stop sexual harassment order be made?
If the FWC is satisfied that the worker has been sexually harassed at work and there is a risk that the worker will continue to be sexually harassed in their workplace, the FWC may make a ‘stop sexual harassment’ order.
‘Sexually harass’ has the same meaning given by section 28A of the Sex Discrimination Act 1984 (Cth). Relevantly, 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.
As with the FWC’s jurisdiction to make ‘stop bullying’ orders, the FWC may make any order it considers appropriate (other than an order requiring payment of a monetary amount) to prevent the worker from being sexually harassed at their workplace by an individual or individuals. This may include prohibiting the worker from operating in the same room or team as the perpetrator(s) of sexual harassment and requiring the employer to monitor the perpetrator(s) behaviour in the workplace.
Unlike bullying, sexual harassment does not need to be a repeated behaviour for a ‘stop sexual harassment’ order to be made by the FWC. A one-off occurrence may be enough depending on the ‘nature or quality of the action or statement’ made, keeping in mind the requirement for the FWC to be satisfied that there is an ongoing risk of the harassment continuing.
Failure to comply with a ‘stop sexual harassment’ order is a breach of the civil penalty provisions under the Act which can result in a maximum penalty or fine of 60 penalty units (currently $13,320).
For more information about hew new jurisdiction, see the FWC’s benchbook.
To hear more about the changes to the legal framework applicable to sexual harassment in Australia and the increasing tendency of Australian courts and tribunals to award and uphold significant sums of damages in sexual harassment cases, please view our webinar Confronting workplace sexual harassment head-on: A brave new world.
If you require any further information or clarification, or for assistance with reviewing existing sexual harassment policies and processes to ensure that they are legally compliant, please contact our Workplace and Employment team at HopgoodGanim Lawyers.