The Federal Government has passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, granting additional powers to the Fair Work Commission allowing them to hear ‘stop sexual harassment order’ applications.
Effective from 11 November 2021, an employee who reasonably believes they have been sexually harassed can apply to the Commission to make an order that the sexual harassment cease under the Fair Work Act 2009. Section 789FF(1) of the Fair Work Act 2009 now provides the ability for the Commission to issue a “stop order” provided that they are 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.
The definition of a worker for the purposes of these amendments is taken from the Work Health and Safety Act 2011 (Cth) and includes a contractor, a subcontractor, an apprentice, a trainee, a work experience student or a volunteer.
Unlike bullying, sexual harassment does not need to be a repeated behaviour. A stop sexual harassment order can made for a once off occurrence depending on the ‘nature or quality of the action or statement’ made.
What must the Commission consider?
Prior to granting a stop order, the Fair Work Commission needs to be satisfied that:
- the harassment has occurred, and
- there is a risk of future harassment occurring.
The Commission must consider:
- any final or interim outcomes resulting from an investigation that is being or has been undertaken by the employer;
- any workplace procedures that are available to the worker to resolve grievances and disputes (such as an internal grievance procedures); and
- any outcomes arising out of any procedure available to the worker to resolve the grievance or dispute.
What can a stop sexual harassment order do?
The Fair Work Commission may make any order it considers appropriate, with the exception of an order requiring payment of a pecuniary amount, to prevent the worker from being sexually harassed at work. The order may be made against an individual or multiple individuals.
An order may require an employer to undertake actions such as:
- taking steps to ensure that specific workers are not present in the same room as each other,
- to conduct awareness education training for its employees
- to update their workplace policies and procedures.
Employers will also be required to actively implement preventative measures to support the management of sexual harassment allegations in the workplace.
How can employers minimise their risk?
In considering what actions may be required to ensure that a harassment free workplace is provided and to reduce potential risks to the business, employers are encouraged to ask themselves:
- Would an employee feel confident that a report of sexual harassment would be handled appropriately if they raised the matter with their manager?
- Would the employee know how to raise the matter?
- Do you know how the matter would be then handled?
- Do your managers understand their obligations in regard to promoting and maintaining a culture that fosters respect in the workplace?
- Do leaders in your workplace act as role models demonstrating appropriate workplace behaviours?
- Are employees aware of the legal consequences (for both themselves and you as their employer) if they are found to have engaged in inappropriate workplace behaviour?
Employers are encouraged to review their current policies and procedures to ensure they:
- provide clear and effective measures to assist in responding to and preventing sexual harassment.
- clearly communicate that sexual harassment will not be tolerated and may constitute a valid reason for summary dismissal.
- address what conduct will constitute sexual harassment, how such conduct can be reported, what support will be offered for employees who experience sexual harassment.
In addition to having sound policies and procedures in place, all employers should ensure that:
- the current culture within the workplace fosters an environment which is safe and respectful.
- regular workplace training and awareness sessions on sexual harassment and reporting processes are conducted.
- any allegations made of sexual harassment is taken seriously and are responded to promptly and appropriately.
While prevention is key, having such measures in place will assist employers in being able to demonstrate that reasonable precautions have been taken in the event that an employee seeks to make a sexual harassment claim to the State equal opportunity commission or the Australian Human Rights Commission.
If you require advice or assistance with reviewing your current workplace procedures in relation to sexual harassment in the workplace, or if you require assistance on any HR matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.