Fair Work Commission hands down first decision in its new anti-sexual harassment jurisdiction 

01 March 2022

On 11 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) commenced, implementing 6 recommendations from the Sex Discrimination Commissioner’s Respect@Work Report.

The Respect at Work Act makes several key changes to workplace laws, including the Fair Work Act 2009 (Cth) (FW Act), the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and the Sex Discrimination Act 1984 (Cth). Details of these changes are set out in our September alert found here.

The FW Act now gives a worker who believes that he or she has been sexually harassed at work the right to apply to the Commission for orders to stop the harassment. The new laws therefore create an extra pathway for workers to address sexual harassment, in addition to the complaint mechanisms that already exist under equal opportunity and workplace safety laws.

The Commission has recently handed down its first decision under this new anti-sexual harassment scheme in the matter of THDL [2021] FWC 6692.

THDL decision

In this matter, the worker (THDL) made an application for an order to stop bullying and sexual harassment by two individuals who were employed by a neighbouring business in the same warehouse complex. THDL also sought an order to register the two individuals as “bad men”.

The individuals objected to the application stating that they did not meet the definition of a “worker”, that THDL was not at work when the alleged sexual harassment occurred and that they had an intervention order against THDL (meaning that they could no longer be in contact).

The Commission found that because THDL’s business had moved out of the warehouse complex there was no likelihood that the parties would cross paths while at work again. On this basis, the Commission determined that there was no risk that the alleged sexual harassment would continue and the application therefore had no reasonable prospected of success. The Commission dismissed the application for a stop sexual harassment order.

In coming to its decision, the Commission emphasised that the power under the FW Act only allows an order to be made to prevent a worker from being sexually harassed at work, and only if there is a risk that the alleged harassment will continue. The laws therefore operate in a similar “preventative” manner to the Commission’s anti-bullying powers.

Key takeaways for employers

This decision has clarified the requirements to obtain an order to stop sexual harassment under the new regime. That is, the Commission must be satisfied that:

  • a worker has been sexually harassed at work by one or more individuals; and
  • there is a risk that the sexual harassment will continue.

In other words, there needs to be an ongoing risk of sexual harassment for an order to be made. The Commission cannot make retrospective orders if there is no longer a risk that the sexual harassment will continue. This means that where a worker no longer works with the alleged perpetrator or is no longer exposed to an ongoing risk of sexual harassment, they will not meet the necessary criteria.

Although this application was dismissed, it is important for employers to be aware of the new laws and the mechanisms which are available for workers who experience inappropriate workplace behaviour.

Employers should consider taking proactive steps to prevent and respond to instances of sexual harassment in the workplace to reduce the risk of a worker having to make an application to the Commission, including:

  • ensuring that workplace policies and procedures on sexual harassment are comprehensive and up to date;
  • facilitating regular sexual harassment training for staff at all levels; and
  • ensuring there is a sensitive and comprehensive complaints and reporting system that allows workers to feel safe and comfortable in raising issues.

Further legislative changes possible

On 14 February 2022, the Attorney-General’s Department opened a new consultation process on the recommendations from the Respect@Work Report which were not implemented in the recent amendments. The consultation process seeks feedback on several further legislative changes, including:

  • expressly prohibiting the creation or facilitation of an intimidating, hostile, humiliating or offensive environment;
  • providing the Australian Human Rights Commission (AHRC) with a broad function to enquire into systemic unlawful discrimination, including sexual harassment;
  • enabling representative bodies to bring claims to court; and
  • inserting a cost provision into the AHRC Act to provide that a party to proceedings may only be ordered to pay the other party’s costs in limited circumstances.

A further proposed amendment seeks to expand the scope of an employer’s duty of care under work health and safety laws. It seeks to introduce a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace, as far as possible. The AHRC will also be given the function of assessing compliance with this duty, and for enforcement.

How we can help you

We can assist employers with:

  • advice in relation to the changes to sexual harassment laws;
  • reviewing and updating existing policies and procedures;
  • reviewing and updating employment and contractor agreements to ensure the appropriate individuals are bound by workplace sexual harassment policies, complaints protocols and codes of conduct; and
  • planning and delivering up to date and best practice workplace training for all levels of your organisation.

If you require our assistance with advice in relation to sexual harassment complaints or assistance with workplace procedures or training, please contact us.

This article was written by Clare Raimondo, Partner, Emma Campbell, Associate and Aleksandar Vukoje, Solicitor.

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