Under changes to the Fair Work Act 2009 (Cth) in late 2021, the Fair Work Commission (FWC) was granted the power to make orders to stop sexual harassment in the workplace. The FWC began accepting sexual harassment applications on 11 November 2021 – a little more than 1 year ago.

In the 2021–2022 financial year, there were 29 applications to the FWC for orders to stop sexual harassment at work. Most applications were discontinued early in the case management process. The remainder of the applications were resolved or discontinued after a conference before a Commission Member.

When can a worker make a stop sexual harassment application?

If a worker reasonably believes they have been sexually harassed at work, they can make an application to the FWC to seek an order that this harassment cease.

A ‘worker’ captures not just employees, but any person carrying out work in any capacity in the workplace. For constitutional reasons, the FWC’s jurisdiction may be limited to the workers of private companies and federal government public servants. As such, you will need to obtain advice if you are a sole trader, operate a partnership, are a not for profit, or a local or state government department.

Sexual harassment occurs when:

• a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature; and
• a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person who was harassed would be offended, humiliated or intimidated.

If the FWC finds sexual harassment has occurred in the workplace and there is a risk it will continue, they can make an order that the sexual harassment cease. However, it cannot make any order awarding monetary compensation. The FWC can make orders against the person who engaged in the sexual harassment, as well as the business.

Other ways to deal with workplace sexual harassment

Applying to the FWC for a stop sexual harassment order is not the only way of dealing with sexual harassment in the workplace. The FWC’s sexual harassment jurisdiction will be appropriate in some, but not all, situations where a worker has been sexually harassed.

Employers have a positive duty to take steps to prevent sexual harassment occurring in the workplace. If sexual harassment is allowed to occur, the person harassed has recourse to obtain a stop sexual harassment order, or they may seek compensation through the relevant state or territory anti-discrimination commission or the Australian Human Rights Commission. Such litigation can be expensive so preventative action is preferable.

By Kelly Godfrey