Fair Work Commission’s new powers: Stop Sexual Harassment Orders

25 January 2022

Australian workforces have certainly not been immune to the impacts of global movements such as #MeToo and #TimesUp. In fact, a 2018 national inquiry (National Inquiry) undertaken into sexual harassment led by the Australian Human Rights Commission found that approximately 39% of women and 26% of men had experienced sexual harassment in the workplace. The unquestionably alarming findings brought into sharp focus Australia’s approach to sexual harassment, and prompted the implementation of the Respect@Work legislative changes [1].

As part of those changes, as of 11 November 2021, the Fair Work Commission (Commission) is now able to hear applications for ‘orders to stop sexual harassment’, an extension of the powers afforded to it under the anti-bullying jurisdiction currently in place. The aim of the jurisdiction is to create a low cost and simplified mechanism to deal with sexual harassment complaints.

Given the criticisms levelled at the efficacy of the anti-bullying jurisdiction (which deals with only approximately 800 cases per year), it remains to be seen whether the ability for the Commission to issue stop sexual harassment orders will have any real impact on the pervasive nature of workplace sexual harassment. Despite this, it is important that employers are familiar with how the new jurisdictions operates, and we set out below the key things to keep in mind.

When does sexual harassment at work occur?

Sexual harassment is defined by the Sex Discrimination Act 1984 (Cth), which states that a person sexually harasses another if they make an ‘unwelcome’ sexual advance, ‘unwelcome’ requests for sexual favours, or engage in other ‘unwelcome’ conduct of a sexual nature, and that conduct would cause a reasonable person to feel ‘offended, humiliated, or intimidated.’ Sexual harassment takes various forms, and can vary in severity. It includes things like making sexually suggestive jokes, sending inappropriate texts, or other similar conduct. Employers are liable for acts of sexual harassment which occur in their workplace, unless they have taken all reasonable steps to prevent it.

Who can apply for a stop sexual harassment order?

A person can apply for orders to stop sexual harassment if they:

are a worker such as an employee, contractor, apprentice or volunteer;
are not a member of the Defence Force; and
reasonably believe they have experienced sexual harassment while at work.

Sexual harassment which occurred before 11 November 2021

Whilst applications to the Commission for orders to stop sexual harassment can only be made from 11 November 2021, workplace harassment occurring before this date can still be considered. The Commission can only make an order where it is satisfied there is risk that the worker will continue to be sexually harassed and that there is a risk of future harm. In this way, the jurisdiction of the Commission focuses on future conduct rather than penalising conduct from the past.

What orders can be made?

The jurisdiction affords the Commission the ability to make any order it sees appropriate, aside from an order for compensation. The range of orders that the Commission may make include orders requiring:

one or more individuals to stop specified behaviour;
regular monitoring of behaviours by an employer;
compliance with an employer’s policy;
the provision of information and additional support and training to workers; and/or
a review of the employer’s workplace policies.

So, whilst the Commission is unable to order monetary compensation, it certainly may make an order that requires some financial expenditure on the part of the employer to give effect to the order. Separately, it is also important to bear in mind that stop sexual harassment orders may be dealt with by the Commission in the same manner as any other dispute. This means the Commission may direct employers to attend a public hearing, and a public decision may be issued in the matter, creating obvious financial, reputational, and legal risk.

Responding to an application

If you are named as an employer or principal in an application to stop bullying or sexual harassment (or both) at work, you are required to lodge a response to the application with the Commission within 7 calendar days of receiving the application. Employers should seek urgent legal advice from NRA Legal to help mitigate their exposure to claims made in other jurisdictions, such as breaches of safety legislation, discrimination claims, or claims for damages.

Tips for employers

Last September, we discussed our top tips for preventing sexual harassment in the workplace. The introduction of the federal sexual harassment jurisdiction is just another of many reminders for employers to ensure they’re staying abreast of their obligations, and taking proactive measures to ensure their workers’ health and safety. It is absolutely incumbent on employers to be supporting their own initiatives to create real change within their organisations, and prevent, so far as is reasonably practicable, sexual harassment or discrimination from occurring.

Don’t know where to start? You’re not alone. NRA Legal has launched its new initiative to support businesses of all sizes to take specific, measurable, and practical measures to protect against workplace sexual harassment. Our team of lawyers will be offering a free consultation to employers to discuss the new sexual harassment jurisdiction, work health and safety obligations with respect to sexual harassment and discrimination, and what you can (and should) do now to protect your workers, and your business. Register your interest by emailing hello@nralegal.com.au.

If you need assistance to proactively manage sexual harassment in your business or otherwise to respond to a complaint of sexual harassment, please contact NRA Legal for a confidential discussion on 1800 572 679.