Since November 2021, employees have had the ability to apply to the Fair Work Commission (Commission) for an order to stop sexual harassment in the workplace.
To be successful in an application, the employee must establish that they have been sexually harassed and that there is a risk that the sexual harassment will continue.
Where an employee cannot establish that there is a risk that the sexual harassment will continue (for example, because they are no longer employed by the employer) the application will be dismissed, regardless of whether sexual harassment has occurred in the past.
Recently, further legislative changes to both the Fair Work Act 2009 (Cth) (FW Act) and the Sex Discrimination Act 1984 (Cth) (SDA) have been implemented to now place a ‘positive duty’ on employers to take reasonable steps to prevent sexual harassment in the workplace.
Employers that fail to take these reasonable steps may be subjected to enforcement action and/or civil penalties.
Orders to Stop Sexual Harassment
In March 2022, we published an article regarding the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) which implemented a key change to the FW Act. This change provided employees who believe they have been sexually harassed at work the right to apply to the Commission for an order to stop sexual harassment.
To obtain an order, the employee must establish that:
- the employee has been sexually harassed by an individual or group of employees; and
- there is a risk that the employee will continue to be sexually harassed at work by the individual or group of employees.
In our March 2022 alert, we summarised the Commission’s first decision under these new laws where the employee unsuccessfully applied for an order to stop sexual harassment. The order was not granted as the employee no longer worked for the employer and there was therefore no risk that the sexual harassment would continue.
In the last year, there have been several further applications made to the Commission all of which have been unsuccessful. In most cases, the application has been dismissed because the employee could not establish that there was a risk that the sexual harassment would continue.
The main decisions are summarised as follows:
- Application by Ranmeet Kaur  FWC487 (22 March 2022) – The employee made an application for an order to stop sexual harassment. The Commission found that the employee had been sexually harassed during the course of her employment. Despite this, the application was dismissed as the employee had resigned from her employment, and there was therefore no reason to believe the sexual harassment would continue.
- Piefke  FWC 1138 (12 May 2022) – The employee made an application for an order to stop sexual harassment that he allegedly experienced during ‘on-board training’. The Commission determined that the employee was exposed to sexual harassment in the workplace, however, the application was dismissed as the employee was no longer employed by the employer, and therefore there was no risk that the sexual harassment would continue.
- Application by Holly Ranson  FWC 1919 (21 July 2022) – The employee made an application for an order to stop sexual harassment. The employer objected to the application on the basis that the employee had been terminated from her employment. The Commission dismissed the application as there was no risk that the alleged sexual harassment would continue.
- Y.S.  FWC 2979 (18 November 2022) – The employee made an application for an order to stop sexual harassment that she allegedly experienced at work. Prior to filing the application, the employee resigned from her employment. The Commission dismissed the application as there was no risk that the sexual harassment would continue.
These decisions emphasise that the Commission will not make an order to stop sexual harassment in circumstances where there is no risk that the alleged sexual harassment will continue. There is yet to be a successful application under the new regime.
Employer’s ‘positive duty’ to prevent sexual harassment in the workplace
Our March 2022 alert outlined prospective further legislative changes in wake of the Respect@Work Sexual Harassment National Inquiry Report 2020. Since then, Respect at Work Act has introduced a positive duty on employers to ‘take reasonable and proportionate’ steps to eliminate unlawful discrimination, including sexual harassment, as far as possible. This means that employers now need to take a proactive approach to prevent sex discrimination, sexual and sex-based harassment, hostile working environments and victimisation.
In practical terms, this means that employers must take steps to prevent its employees, agents, and the organisation itself from engaging in sexual harassment.
Proactive steps that employers can take may include:
- having a strong and clear policy on sexual harassment;
- training leaders to model, encourage and enforce desired behaviours to demonstrate expectations;
- providing regular training to staff to ensure they understand their responsibilities;
- implementing sexual harassment prevention plans which detail an organisation’s sexual harassment prevention strategy;
- regular employee training on identifying, preventing, and reporting sexual harassment;
- regular reviews of sexual harassment processes and procedures to ensure they remain up-to-date and compliant;
- implementing policies and procedures that set out where, how and who employees can make complaints to;
- ensuring that relevant personnel within the organisation are trained to deal with any sexual harassment complaints received; and
- ensure the organisation has complete oversight over all complaints (for example, through an internal complaints register).
These amendments do not change an employer’s existing obligations to prevent sexual harassment in the workplace pursuant to work health and safety legislation.
Other important legislative changes
- From 6 March 2023, under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act), there is now an express prohibition on sexual harassment in connection with work. The intention of this amendment is to shift the responsibility for making complaints away from victims of sexual harassment by imposing an obligation on employers to take proactive steps (such as those outlined above) to eliminate such conduct in the first place.
- From 12 December 2023 the Australian Human Rights Commission (AHRC) will be empowered to monitor and assess employer’s compliance with its positive duty to take reasonable and proportionate steps to eliminate unlawful discrimination, including sexual harassment, as far as possible. This means that the AHRC will have the power to:
- conduct inquiries into compliance by an employer with the positive duty and provide recommendations to achieve compliance;
- issue a compliance notice specifying the action that an employer must take, or refrain from taking, to address any non-compliance;
- apply to the federal courts for an order to direct compliance with the compliance notice; and
- enter into enforcement undertakings with an employer.
- The AHRC will have the power to undertake such inquiries if it reasonably suspects that a relevant employer is not complying with their positive duty. In making their assessment, the AHRC will consider the size, nature and circumstances of the business, the employer’s resources and the practicability and costs associated with the steps required to fulfil their positive duty.
For more information regarding the new obligations under the Anti-Discrimination And Human Rights Legislation Amendment (Respect At Work) Act 2022, see our December 2022 article here.
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 conducts; 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 Emma Campbell, Senior Associate and reviewed by Kathryn Dent, Partner and Clare Raimondo, Partner.