18 January 2022

On 24 December 2021, the Fair Work Commission released its first decision under its new anti-sexual harassment jurisdiction, which commenced operation on 11 November 2021.

In the decision of THDL [2021] FWC 6692 Commissioner Yilmaz dismissed an application to stop bullying and sexual harassment on the basis that the application had no reasonable prospect of success as there was no risk of continued bullying or sexual harassment.

Fair Work Commission’s Power to Issue “Stop Sexual Harassment” Orders

The Fair Work Commission now has the power to make “stop sexual harassment” orders to prevent sexual harassment from continuing in the workplace. The Commission’s new anti-sexual harassment jurisdiction commenced following a recommendation in the Australian Human Rights Commission’s landmark Respect@Work report, ‘Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces’.

A worker who has been sexually harassed in the workplace can now apply to the Fair Work Commission for orders to stop the sexual harassment from continuing. Sexual harassment is given the same meaning that it has in the Sex Discrimination Act 1984 (Cth) s 28A. It includes unwelcome conduct (including comments) of a sexual nature, that a reasonable person in all of the circumstances would anticipate would cause the targeted person to be offended, humiliated or intimidated. A person can apply for an order to stop workplace sexual harassment if they:

• are a “worker” as defined in the Work Health and Safety Act 2011 (Cth);
• are not a member of the Australian Defence Force; and
• reasonably believe that they have experienced sexual harassment while working at a constitutionally-covered business.

The Work Health and Safety Act 2011 (Cth) s 7 defines “worker” as an individual who performs work in any capacity, so the sexual harassment at work jurisdiction covers contractors, outworkers, and volunteers at the workplace, and not only directly employed staff.

The Commission has the power to make a “stop sexual harassment” order if a worker has made an application under section 789FC of the Fair Work Act 2009 (Cth) and the Commission is satisfied that:

• the worker has been sexually harassed at work; and
• there is a risk that the sexual harassment will continue at work.

Unlike workplace bullying orders, which will only be made where the bullying conduct is repeated, the “stop sexual harassment” orders can be made in circumstances where the sexual harassment has occurred as a one-off incident. As the Commission must be satisfied that there is a risk that the sexual harassment will continue at work, only workers who are currently engaged at the workplace can succeed in a claim in this jurisdiction. Former employees cannot maintain a claim in this jurisdiction.

A person named as an employer or principal in an application to stop bullying or sexual harassment (or both) at work must lodge a response to the application with the Commission within seven calendar days after the day on which the application was served.

Fair Work Commission’s First Decision in its New Anti-Sexual Harassment Jurisdiction

In the Fair Work Commission’s first decision in this new anti-sexual harassment jurisdiction, an application for an order to stop bullying and sexual harassment has been dismissed, but only because the applicant was no longer at any risk of continued harassment.

The application was made against two individuals employed in a neighbouring business operating in the same warehouse complex as the applicant’s business. THDL, the applicant, accused the workers of the neighbouring business of subjecting them to bullying and sexual harassment. THDL indicated that they were seeking an order to register the two individuals as “bad men”.

The two individuals and their employer objected to the application, on grounds that THDL did not meet the definition of ”worker”, that THDL was not at work when the alleged bullying and sexual harassment occurred, that they reported THDL to the police and have an intervention order against THDL.

Commissioner Yilmaz declined to consider the particulars of the allegations after it was confirmed that that the workers no longer had “any physical connectivity, where they will cross paths while at work” as THDL’s place of work was relocated and moved out of the premises where the alleged bullying and sexual harassment occurred.

Commissioner Yilmaz found that there was no continued risk of bullying or sexual harassment as “THDL no longer operates a business in the same warehouse complex, the parties have intervention orders that they are not to be within 200 metres of each other, and there is no prospect of the parties being in the same location while at work“.

Commissioner Yilmaz dismissed THDL’s application on the basis that the application had no reasonable prospects of success as there was no risk of continued bullying or sexual harassment.

What Should Employers Do?

The commencement of the Fair Work Commission’s new anti-sexual harassment jurisdiction serves as a reminder to employers that proactive action should be taken to prevent sexual harassment in the workplace. In light of this recent change, employers are advised to:

• organise formal training in relation to sexual harassment within the workplace;
• review and update existing sexual harassment policies and procedures;
• implement appropriate complaints and reporting processes that are accessible to all workers; and
• understand their obligations in relation to preventing and addressing sexual harassment in the workplace.

For more information or if you require advice and assistance regarding the above, please contact our Harmers team on +61 2 9267 4322.