By Kelly Godfrey

On 6 March 2023, changes to the Fair Work Act 2009 (Cth) (FW Act) took effect to prohibit sexual harassment in connection with work and empower the Fair Work Commission (FWC) to deal with sexual harassment disputes.

Prohibiting sexual harassment

The FW Act now includes an express prohibition against sexual harassment in connection with work. The prohibition not only applies to employee but will also extend to any individual who performs work in any capacity, including contractors, subcontractors, apprentices, trainees, volunteers or prospective workers.

As with anti-discrimination legislation, employers will be vicariously liable for acts of sexual harassment by their employees or agents, unless they have taken all reasonable steps to prevent the conduct.

Contravention of this new prohibition will attract a civil penalty (up to $82,500 for body corporate employers).

FWC powers to deal with disputes

The FWC’s new powers to manage sexual harassment disputes is intended to operate like how the FWC deals with dismissal disputes.

A person who alleges they have been sexually harassed in connection with work by a person can now make an application to the FWC to deal with a sexual harassment dispute. This includes the ability for a person to apply for a stop sexual harassment order (some background about the FWC stop sexual harassment orders can be found here).

Once a sexual harassment dispute application is made, a FWC member will be assigned to decide on how to deal with the matter, including listing the matter for a conference (mediation or conciliation) or hearing. Parties may also seek to have the sexual harassment dispute dealt with by arbitration at the FWC if other attempts to resolve the dispute fails.

It is important to know that a person has limited ability to make a sexual harassment court application unless the FWC has dealt with the dispute and is satisfied that all reasonable attempts to resolve the dispute have been unsuccessful.

Any conference in relation to the sexual harassment application will be conducted in private. If the conference results in a settlement, the parties have the option to include a non-disclosure or confidentiality clause in the terms of settlement.

The FWC will be publishing a new Sexual Harassment Disputes Benchbook setting out in more detail the FWC’s jurisdiction and processes for dealing with sexual harassment disputes.

What should you do?

You should ensure your business has effective policies in place to prevent sexual harassment from occurring in the workplace. Policies should set out the employer’s expectations of its employees when it comes to sexual harassment. Additionally, there should also be policies that clearly state that sexual harassment constitutes serious misconduct and is a valid reason for dismissal.

Ensure you have appropriate reporting procedures in place for people to report sexual harassment in the workplace and encourage people to make such reports. Any sexual harassment complaint should be dealt with promptly and confidentially.

Effective training is a good way to prevent sexual harassment. Provide yearly compulsory training to all workers (including senior management) on sexual harassment.

People who will likely receive sexual harassment complaints (e.g. human resources, managers) should also receive additional training on how to manage such complaints and provide support to the person making the complaint.