In the 17 September edition of QHA Update, members were provided with information regarding changes arising from the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (‘Amendment Act’). To read this article, click HERE.
The Amendment Act amended the Fair Work Act 2009 (‘FW Act’) and expanded the Fair Work Commission’s (‘FWC’) bullying jurisdiction; as such, the FWC can now receive applications and make orders to stop sexual harassment at work.
Unlike the other Amendment Act changes that took effect on 11 September 2021, the ability for a worker to apply for an FWC order to stop sexual harassment was delayed for two months.
From 11 November 2021, workers have the ability to seek orders to stop sexual harassment through the FWC, including for sexual harassment that occurred before 11 November 2021.
Section 789FF(1) of the FW Act was amended to state that the FWC may make an order (other than an order of compensation) to prevent the worker from being sexually harassed at work if the:
FWC is satisfied that the worker has been sexually harassed at work by one or more individuals, and the FWC is satisfied that there is a risk that the worker will continue to be sexually harassed at work by the individual or individuals.
Sexually harassed, for the purpose of this new jurisdiction, is defined by section 28A of the Sex Discrimination Act 1984 as the following:
28A Meaning of sexual harassment
(1) For the purposes of this Act, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A) For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c) any disability of the person harassed;
(d) any other relevant circumstance.
(2) In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
It’s important to note that like the bullying jurisdiction, a worker may apply for a stop sexual harassment order. The definition of a worker is taken from the Work Health and Safety Act 2011 (Cth) and includes a contractor, a subcontractor, an outworker, an apprentice, a trainee, a work experience student or a volunteer.
Where the new order to stop sexual harassment jurisdiction differs to the existing bullying jurisdiction is that an application for an order to stop sexual harassment can be after a single incident, as opposed to a bullying application, which can only be made if the bullying behaviour is repeated.
The FWC website now features a dedicated page titled Sexual Harassment at Work, which can be accessed by clicking HERE. From this page, workers and employers can access information regarding:
- Who can apply;
- FWC processes in dealing with an application for an order, and;
- How to respond to an application.
The page also provides a link to the new Orders to stop sexual harassment Benchbook and Form F72 – Application for an order to stop bullying or sexual harassment (or both).
Once received, an application may be referred for conciliation, conference or hearing.
While this is a new jurisdiction, the Orders to stop sexual harassment benchbook outlines the possible orders that the FWC might make and includes:
- Changes in working arrangements;
- Orders for one or more individuals to stop specified behaviour;
- Regular monitoring of behaviour by an employer;
- Compliance with an employer’s policy;
- Orders regarding the provision of information and additional support and training to workers;
- Orders to conduct a safety risk assessment for the workplace, and review of the employer’s workplace policies, and;
- The establishment and implementation of appropriate policies, procedures and training.