As we foreshadowed in our recent article, as a result of the Respect@Work Report, the Federal Government has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which in effect amends the Fair Work Act 2009 (FW Act) to grant additional powers to the Fair Work Commission (FWC) to hear applications by workers for ‘stop sexual harassment orders’.
From 11 November 2021, an employee who reasonably believes they have been sexually harassed can apply to the FWC for orders that the sexual harassment stop. The changes to the FWC’s powers are implemented through section 789FC(1) of the FW Act, which now states:
“A worker who reasonably believes that he or she has been bullied or sexually harassed at work may apply to the FWC for an order under section 789FF.”
Additionally, section 789FF(1) of the FW Act has been updated to provide that the FWC can issue a “stop order” provided that the FWC is satisfied that:
- the worker has been sexually harassed at work by one or more individuals; and
- there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.
When will an order be made?
Similar to the existing stop bullying order regime, the new stop sexual harassment jurisdiction is intended to prevent the risk of future harm.
Before granting such 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. In other words, if the perpetrator of sexual harassment is no longer employed in the workplace, there will likely be no scope for an order to be issued, as future harm is not likely to occur.
As with a stop bullying application, the FWC must take into account:
- any final or interim outcomes arising out of an investigation that is being or has been undertaken by the employer;
- any procedure available to the worker to resolve grievances and disputes (such as internal grievance or complaint procedures); and
- any outcomes arising out of any procedure available to the worker to resolve the grievance or dispute.
Importantly (and unlike bullying), sexual harassment does not need to be a repeated behaviour for a stop sexual harassment order to be made. That is, a once off occurrence of sexual harassment may be serious enough for a sexual harassment order to be made, depending on the ‘nature or quality of the action or statement’ made.
What can a stop sexual harassment order do?
The FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being sexually harassed at work by an individual or individuals. For example, it could prevent workers from being in the same room as each other, order a business to conduct training or update their workplace policies, or require an employer to monitor an employee’s behaviour.
Whilst an order may be effective at an early intervention stage, as mentioned above, it will only be effective if the employee is remaining in the workplace with the alleged perpetrator, which may not be a safe or appropriate option.
As such, employers will also need to take an active role in implementing preventative measures and strategies to assist them in managing any allegations of sexual harassment in the workplace.
Recommendations for employers
Firstly, employers should review their current policies and procedures to ensure they provide clear and effective measures to assist in responding to and preventing sexual harassment. Policies are an effective way to communicate to employees that sexual harassment will not be tolerated and can constitute a valid reason for dismissal.
An effective policy should address what conduct will constitute sexual harassment, how employees can report such conduct and any support that the workplace will offer for employees who experience sexual harassment.
Secondly, preventing sexual harassment in the workplace must be embedded in the workplace culture. Employers should closely consider their current workplace culture and consider strategies that could assist in fostering a culture that is respectful and safe. Employers should consider taking proactive measures such as conducting regular workplace training on sexual harassment and promoting safe mechanisms for how employees can confidentially report such conduct.
Lastly, employers should always take allegations of sexual harassment seriously and respond quickly and appropriately should they arise.
In addition to reducing the likelihood of an application being made to the FWC, these measures 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.
If you require advice on the new stop sexual harassment jurisdiction or assistance with reviewing your current workplace procedures in relation to sexual harassment at work, HR Legal can help.