Tuesday, 8 February 2022

First Fair Work Commission Application for Stop Sexual Harassment Order Dismissed

The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 granted additional powers to the Fair Work Commission (FWC) to hear applications by workers for ‘stop sexual harassment orders’ from 11 November 2021.

In the first application of this type, on 24 December 2021 the FWC dismissed an application for a stop sexual harassment order in the decision of THDL which we discuss further below.

Stop Sexual Harassment Orders

As discussed in our previous article, the FWC can issue a stop order to prevent sexual harassment where the FWC is satisfied that:

  1. a worker has been sexually harassed at work by one or more individuals; and
  2. there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.

Before granting an order, the FWC will need to be satisfied that, firstly, the harassment has occurred and secondly, there is a risk of future harassment occurring.

Case study: Application by THDL

Background

In the case of THDL, the Applicant (known as “THDL”) filed an application in the FWC for an order that two individuals employed by a neighbouring business in the same warehouse complex stop bullying and sexual harassing THDL.

The two individuals objected to the application on several grounds including that THDL did not meet the definition of “worker”, that they were not at work when the alleged conduct occurred and that there was an intervention order in place against THDL.

Further, and most relevantly, it was accepted by all parties that THDL’s business had moved out of the warehouse complex and the parties would therefore not cross paths again while at work.

FWC Decision

In their decision, Commissioner Yilmaz dismissed the application. In doing so, the Commissioner outlined that as THDL’s place of work was removed from the location where they allege they were the subject to bullying and sexual harassment by the two individuals that previously worked in the same warehouse complex (albeit in a neighbouring business), there is no risk that THDL may be subject to bullying and/or sexual harassment at work. For this reason, the application had no prospects of success and was dismissed on that basis.

Lessons for employers

The THDL decision confirms that there needs to be an ongoing risk of bullying or sexual harassment to obtain a stop order from the FWC.  In other words, an applicant who no longer works with an alleged perpetrator is unlikely to obtain a stop order from the FWC if the conduct is unlikely to continue. This reflects the position under the parallel ‘Stop Bullying Order’ jurisdiction in the FWC.

Employers should consider taking proactive steps to prevent and respond to sexual harassment in the workplace, which can in turn reduce the risks of an application of this type being made to the FWC.

These steps will also assist an employer in demonstrating it has taken ‘reasonable precautions’ in the event an employee or former employee seeks to make a sexual harassment claim to the State equal opportunity commission or the Australian Human Rights Commission, as opposed to an application to stop sexual harassment to the FWC.

This may include:

  1. Implementing appropriate policies and procedures on bullying, discrimination and harassment including sexual harassment which meet the extensive legislative and case law requirements.
  2. Conducting anti-bullying, discrimination and harassment training for all workers, including what constitutes sexual harassment and ensuring workers understand avenues for reporting cases of this type of conduct.
  3. Maintaining appropriate investigation procedures to address reports of bullying, discrimination and harassment, and promptly and consistently following these procedures once a report has been made.

If you require advice on the stop sexual harassment jurisdiction or assistance with reviewing your current workplace procedures or training in relation to sexual harassment at work, HR Legal can help.

THDL [2021] FWC 6692

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.