Fair Work Commission declines to make stop sexual harassment order

In a recent decision, the Fair Work Commission has declined the opportunity to exercise its powers under the new anti-sexual-harassment jurisdiction. Commencing on 11 November 2021 the Commission may make any order it considers appropriate (excluding requiring payments) to prevent a worker from being sexually harassed at work. Critics of the new jurisdiction note that the Commission effectively already possessed such powers under the existing anti-bullying jurisdiction.

Nevertheless, in THDL [2021][1] the Applicant filed an application for the Commission for an order to stop bullying and sexual harassment in accordance with s.789FC of the Fair Work Act 2009 (Cth). Ultimately Commissioner Yilmaz found that the application made had no reasonable prospects of success and dismissed the application on this basis. This decision was reached since the Applicant and Respondents no longer shared a workplace and had been granted intervention orders to not be within 200 metres of one another. This being the case, Commissioner Yilmaz noted that the workers “no longer have any physical connectivity, where they will cross paths while at work”. It followed then that there was no risk of bullying or sexual harassment occurring in future.

It should be stressed that the circumstances of this case were quite unique and that the outcome reached is not indicative of a broader reluctance from the Commission to exercise these new powers.

The case for sexual harassment awareness audits

In evidence provided to a Western Australia parliamentary inquiry[2] major resources companies BHP and Rio Tinto have provided some concerning revelations. BHP advised the Committee that over a two-year period it had terminated six employees for sexual assault and 48 for sexual harassment. In turn, Rio Tinto advised that it had substantiated one sexual assault and 29 sexual harassment cases since the start of 2020. Shockingly, these figures are constrained to each companies operations in Western Australia alone.

The prevalence of sexual harassment issues is not constrained however to the resources sector. A review conducted by the Sex Discrimination Commissioner into Commonwealth Parliamentary Workplaces found that one in three people performing work in, or in connection to, the Federal Parliament had experienced some form of sexual harassment while working there.

It is clear that employers need to take active steps to identify if, and the potential extent to which, sexual harassment is occurring in their workplaces. Managers ready to take such steps should register with NRA Legal here for a free 30-minute consultation to discuss how a sexual harassment awareness audit can assist to ensure a safe workplace.

[1] FWC 6692 (24 December 2021).

[2] Inquiry into sexual harassment against women in the FIFO mining industry, Community Development and Justice Standing Committee.