On 11 November 2021, the Fair Work Act 2009 (“the Act”) was amended to allow a person to apply to the Fair Work Commission (“the Commission”) for orders to stop sexual harassment at work. The new Federal laws cover workers nationwide and are aimed at improving protection and increasing empowerment of workers in relation to workplace sexual harassment.
A ‘stop sexual harassment order’ is an order that aims to prevent a worker from being sexually harassed at work.
A person is eligible to apply for an order to stop sexual harassment at work if they:
Notably, for the purposes of this legislation, a ‘worker’ does not only refer to employees. A worker is a person who carries out work in any capacity for a person conducting a business or undertaking, including any of the following:
A constitutionally covered business includes:
The majority of incorporated employers in the private sector that sell goods or provide services to customers will be ‘constitutionally-covered businesses’.
The term “sexually harass” has the same meaning as that in section 28A of the Sex Discrimination Act. A person sexually harasses another person if:
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.
Sexual harassment can be a single incident or something that happens more than once and may constitute a sexual advance, a request for sexual favours or other conduct of a sexual nature. Examples include:
Whether or not the conduct is ‘unwelcome’ is a subjective question and turns on the attitude of the recipient of the conduct. The intention of the person responsible for the conduct is not relevant. Unwelcome conduct has been described as being:
The phrase ‘at work’ is not defined in the legislation. However, the term has been previously considered by the Commission in relation to bullying matters. It has previously been determined that:
In order to make a ‘stop sexual harassment’ order, the Commission must be satisfied that a person has been sexually harassed at work by an individual or individuals and that there is a risk the person will continue to be sexually harassed at work by that individual or individuals.
A person, however, does not need to show that sexual harassment poses a risk to their health and safety.
When determining whether orders can be made to ‘stop sexual harassment’, the Commission should consider:
The Commission can make any order it considers appropriate to prevent a person from being sexually harassed at work. However, the Commission cannot order the payment of compensation to a worker who has been sexually harassed.
Orders that may be made include those:
There is no timeframe within which a worker must lodge an application for an order to stop sexual harassment.
However, an application for an order won’t succeed if the person no longer has a connection to the workplace (for example, they have resigned or retired). This is because there will not be any risk that the person will continue to be sexually harassed at work.
If a person is unable to seek assistance from the Commission, they may nevertheless be able to commence other action against a person under human rights laws, anti-discrimination laws and equal opportunity laws.
‘Stop sexual harassment orders’ can be very onerous and expensive for businesses. Businesses should take sexual harassment seriously and can help prevent sexual harassment by:
It is important for businesses to remember that sexual harassment is considered serious misconduct and can be a valid reason for dismissal.
There is currently a high level of awareness of sexual harassment in the workplace and it is important that employees understand their rights and employers have in place policies and procedures to target and eliminate sexual harassment.
The law in relation to sexual harassment can become complex and should you seek assistance in this area, please contact us.
📞 07 3361 0222 (24/7)
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Gilshenan & Luton, Criminal & Employment Lawyers Brisbane and Sunshine Coast, Queensland.