Workplace sexual harassment regulation changes

November 11, 2021 heralds in a new era in workplace sexual harassment regulation with the commencement of the jurisdiction of the Fair Work Commission (FWC) to hear and determine applications for Stop Sexual Harassment orders.  

From 11 November 2021, the FWC commences its new jurisdiction which allows employees to make direct applications to the FWC for orders to be applied in the workplace to stop workplace sexual harassment. Like its jurisdiction in making orders to stop workplace bullying, the FWC will not be able to order compensation, but with that limitation aside, they will be able to make any other order appropriate to stop sexual harassment in the workplace.

What is workplace sexual harassment?

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.

The circumstances which are to be taken into account include, but are not limited to

(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.

When can sexual harassment “at work” be taken to the FWC?

The FWC has jurisdiction to consider complaints about sexual harassment which occur “at work”.

The Act itself defines this as:

A worker is sexually harassed at work if, while the worker is at work, one or more individuals sexually harasses the worker.

Although the above appears pretty simple, it’s not.  A worker can be considered to be “at work” in a range of extended situations such as at work organised functions, at work sponsored functions and in other situations where it is found that there is sufficient nexus to the workplace.

The jurisdiction of the FWC is limited to businesses who are covered by the Fair Work Act, 2019 however this is almost all businesses, other than State Public Sector or Local Government organisations.

What should employers be doing now?

Ideally employers should not find themselves before the FWC on an application for a Stop Sexual Harassment order, however to avoid such situations or to be in the best position should it occur, employers should be taking the following proactive steps:

• Employers should ensure that they have an up to date policy on workplace sexual harassment specifically or a workplace behaviour policy more generally, as well as a complaints process which provides a mechanism for employees to raise concerns as soon as they arise. The complaints process should provide a process for resolution of the complaint in a manner which recognises the sensitivity of such issues.
• Employers should ensure that their entire team have been trained about what constitutes sexual harassment and their leaders should additionally be receiving training on how to recognise potential areas of risk, implement mitigation strategies and manage incidents in the workplace if they arise. Anything short of a robust policy, appropriate complaint mechanism and staff training, is highly unlikely to be seen as sufficient conduct on the part of an employer to avoid being held vicariously liable should an incident occur.
• Employers should be ensuring they have the internal or external capacity to sensitively and appropriately investigate complaints if they are made and finally, employers should be reviewing their disciplinary policies to ensure that workplace sexual harassment is being treated with the gravity appropriate to such conduct. The Fair Work Act, 2009 has been amended to include workplace sexual harassment within the definition of “serious misconduct”. However, like all other workplace behaviour issues there is a continuum of conduct from less serious to very serious and each occurrence must be assessed on its own facts and the penalty should be appropriate to the seriousness of the substantiated conduct.

If you would like assistance in drafting or reviewing your policies or designing and delivering training our specialised HR and IR consultants are here to assist.  Our team also includes expert investigators and advocates who are able to assist with FWC proceedings should you be the recipient of a complaint. Please contact us on +61 7 3218 3919.

Author: Cheryl-Anne Laird

Published:  11 November 2021

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