From 11 November 2021, the Fair Work Commission now has new powers to make “stop sexual harassment orders” against employers and co-workers.
This is an extension of the FWC’s existing powers to make stop bullying orders and is found in section 789FF(1) of the Fair Work 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.”
An order will only be made if the FWC is satisfied that:
- A worker has been sexually harassed at work by one or more individuals; and
- there is a risk that the sexual harassment will continue.
As with stop bullying orders, the idea is that the orders will protect workers from future harm occurring in the workplace and therefore are unlikely to be of any use if either the victim or the perpetrator of the harassment is no longer employed.
An important difference between the FWC’s powers in respect of sexual harassment orders versus bullying orders is that a stop bullying order can only be made where there has been repeated bullying behaviour towards a worker. In the case of a stop sexual harassment order, a single act of sexual harassment would suffice for the FWC to make an order in appropriate circumstances.
When will the FWC make a stop sexual harassment order?
Before making a stop sexual harassment order (as with a stop bullying order) 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 an internal grievance or complaint procedures); and
- any outcomes arising out of any procedure available to the worker to resolve the grievance or dispute.
In consequence of this, employers may be able to defend any such applications by showing that they are already dealing effectively with any instance of sexual harassment (or bullying) that has come to light in the workplace.
What can (and can’t) a stop sexual harassment order do?
The FWC has no powers to order compensation to be paid to the worker, and if a worker was seeking such compensation then other legal remedies should be pursued in addition or in the alternative to a stop sexual harassment order (such as a claim under the Sex Discrimination Act 1984 (Cth)).
The FWC does, however, have wide powers to make any other order it considers appropriate. It might order, for example, that certain workers do not work together, or that they be given training or be subject to monitoring by the employer.
Penalties for breaching such orders can be severe and so employers should pay very close attention to the terms of any order that is issued.
Lessons for Employers
The introduction of stop sexual harassment orders is part of a range of recent amendments to the law aimed at preventing sexual harassment in the workplace arising from the Respect@Work Report, and the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (see our earlier article).
These developments are likely to mean that most employers need to update workplace policies – and potentially employment contracts – to take account of the changes. Of course, a policy that clearly states that sexual harassment will not be tolerated at work (and provides a method of workers reporting such conduct and for a proper investigation) is only a part of the solution.
Leaders in a business need to consider how they embed a culture where sexual harassment is not accepted, and that appropriate behaviour is demonstrated from “the top-down”. Employers may wish to consider introducing periodic training on what sexual harassment is and how it will be dealt with in the workplace, as well as what support there is for any victims (such as a confidential Employee Assistance Program (EAP).
Need further help?
If you require any assistance with a review of existing policies or contracts, or if you requiring internal training to be delivered to your organisation, please contact EI Legal.
The information provided in these blog articles is general in nature and is not intended to substitute for professional/legal advice. If you are unsure about how this information applies to your specific situation we recommend you contact EI Legal for advice.