From 11 November 2021, applications can be made to the Fair Work Commission (FWC) for an order to stop sexual harassment, similar to the current Stop Bullying Orders.
Reforms
This reform is a result of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (the Reform Act), which received Royal Assent on 10 September 2021 and commenced on 11 September 2021. The Reform Act extended the stop-bullying jurisdiction found in Part 6-4B of the Fair Work Act 2009 (Cth) to allow the Commission to make orders to stop sexual harassment in the workplace.
This reform was part of the government’s response to the recommendations made in the Australian Human Rights Commission’s Respect @ Work Sexual Harassment National Inquiry Report from 2020, adopting some but not all of the recommendations in that report.
When can employees apply for a Stop Sexual Harassment Order?
Although applications cannot be made before 11 November 2021, when they do come into effect employees may apply to the FWC if they reasonably believe that they have been sexually harassed at work. Conduct occurring prior to this date may also entitle a person to obtain an order from the FWC
When will an order be made?
An order to stop sexual harassment will be made if the FWC is satisfied a person has been sexually harassed by an individual or individuals at a workplace, and there is a risk the worker will continue to be sexually harassed by the same individual or individuals.
Demonstrating previous sexual harassment and that a complainant expects it to continue may create a significant evidentiary barrier to orders to stop sexual harassment being widely used.
What can an order to stop sexual harassment do?
The FWC can “make any order it considers appropriate… to prevent the worker from being… sexually harassed at work”. However, the law is explicit in excluding financial remedies as an option for the FWC.
Given orders to stop sexual harassment are new and yet to be tested, it remains to be seen what orders will be made by the FWC. Given stop sexual harassment orders are closely related to stop bullying orders, which have existed since 2014, guidance can be taken from this jurisdiction – we expect that orders to stop sexual harassment may include:
- Requiring the employee to report to a different manager;[1]
- Orders preventing the parties from communicating or being within a geographic radius of each other;[2]
- Orders requiring the development of company training procedure to deal with workplace misconduct;[3] or
- Attendance on site by an inspector to review return to work plans and risk assessments.[4]
Employers are encouraged to have training and policies in place to prevent sexual harassment and make clear it is not acceptable in their workplace. Sexual harassment can also be sexual assault and is a workplace safety issue that can result in workers compensation claims.
If you would like assistance to ensure your existing policies are adequate to minimise the risk of sexual harassment becoming an issue in your workplace, please contact us.
[3] Ibid.