Sexual Harassment Orders in the FWC

Respect At Work

Sexual harassment, as defined under state specific anti-discrimination laws or falling under sex discrimination, is unwanted or unwelcome sexual advances.

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Sexual harassment in the workplace is unlawful but it is still an ongoing and challenging issue in Australian workplaces. Every employee has the right to a workplace free of sexual harassment and ensuring respect at work.

Consequently, the Federal Government has introduced a Bill to the Senate which aims to simplify and streamline sexual harassment, respect at work, legislation and allows the Fair Work Commission to deal with such complaints, as it would with the bullying complaints. These proposed legislative changes aim to provide greater protection for employees from sexual harassment in the workplace.

Th Proposed Bill

The proposed Bill is in response to the Respect@Work Report (the Report) presented to the Government by the Sex Discrimination Commissioner, Kate Jenkins, in March last year. The central aim of the Respect@Work Report was to provide recommendations to the Federal Government about how the current legislative schemes need to be amended to better integrate and align the anti-discrimination, workplace and WHS systems and put in place a proactive, preventative approach to sexual harassment.

Since 1 January 2014, the Fair Work Act has provided for the Commission to make orders to stop bullying at work. While sexual harassment may constitute bullying in some circumstances, the 2 types of behaviour can differ substantially in nature and experience.[1]

From 11 November 2021, the Fair Work Act provides for persons to apply to the Commission for orders to stop sexual harassment at work. Part 6 – 4B of the Fair Work Act 2009 (Cth), which deals with orders to stop bullying, will now be extended to allow a worker who has been sexually harassed (as defined in section 28A of the Sex Discrimination Act 1984) at work, by one or more individuals, to apply to the Fair Work Commission for an order to stop the sexual harassment. This measure operates in the same way as the current anti-bullying orders, only preventing future harm and with limited remedies available to the affected employee.

An order can only be granted if the Commission is satisfied that sexual harassment has occurred and if there is a risk of the harassment occurring again. In contrast to the anti-bullying orders, repeated sexual harassment conduct is not required for an order to be made.

Changing the definition

In addition, the new respect at work legislation changes the definition of “serious misconduct”, under the Fair Work Act 2009 (Cth), to include sexual harassment and making sexual harassment a valid reason for an employee to be terminated. Previously, the Fair Work Act 2009 (Cth) did not expressly prohibit sexual harassment. Instead, it can be indirectly raised through a number of provisions under the Fair Work Act 2009 (Cth), such as under the general protections provisions.

The Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 describes the provisions in the Fair Work Act dealing with orders to stop sexual harassment as follows:

“This Bill would amend the FW Act to clarify that a worker who is sexually harassed at work may apply to the FWC for an order to stop the harassment. Conduct that amounts to bullying can also be sexual harassment. While sexual harassment that is repeated is already captured under the existing provisions of the anti-bullying jurisdiction, this Bill will insert new provisions in Part 6-4B of the FW Act to expressly provide that the FWC can make an order following a single instance of sexual harassment. The new provisions afford those who have suffered workplace sexual harassment with access to a fast, low cost, informal mechanism to deal with complaints”.[1]

[1] Statement of Compatibility with Human Rights, Explanatory Memorandum, Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 at para. 6.

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