By Cala Ahmed and Courtney West
From times where workplace bullying and sexual harassment claims were flippantly disregarded or explained as “It was just a joke” to formal inquiries being conducted into allegations of behavioural misconduct under zero-tolerance policies: both public perception of sexual harassment and the legal frameworks that address it have progressed significantly over the last few decades.
Sexual harassment is something that’s now being addressed more seriously than ever in a workplace context. This focus has been reflected by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 resulting from the Respect@Work Report drafted by Kate Jenkins, Sex Discrimination Commissioner.
Although the majority of the amending legislation commenced operation earlier this year, the latest round of changes, which took effect on 11 November 2021, now provides an avenue for workers to lodge an application with the Fair Work Commission (Commission) for an order to stop sexual harassment at work. These amendments now give the Commission the power to intervene in workplace affairs if it finds that there’s a risk of continued sexual harassment to any workers even after just one incident.
In this article, we explain how the application process works, and the role the Commission plays in addressing sexual harassment in the workplace.
How does the application process work?
Applications for stop sexual harassment orders are available to workers if they reasonably believe that they have been sexually harassed within a constitutionally covered entity – this includes most Australian businesses.
The application process can be completed online for a fee of $74.90 (as of the 2021-2022 financial year), however, where a worker is experiencing financial difficulties, they may apply for the fee to be waived. The application should include details relating to the incident and how they would like the Commission to respond.
The application process is similar to what is used for the stop bullying orders which have been in place for several years. The process is designed to be a simple and accessible method for workers who have concerns about their treatment in their workplace and need quick relief.
What makes these applications unique is that there’s no timeframe that applications must be made within, but they’re still restricted by the rule that orders will be only be made if the Commission is satisfied that not only has sexual harassment occurred but that there’s also a risk that the worker will continue to be sexually harassed by the individual/s identified in the application.
A ‘worker’ for the purposes of these applications and orders can include an employee, volunteer, contractor, subcontractor, or apprentice.
The role the Commission plays
The Commission is required to deal with any anti-sexual harassment application within 14 days from the day the application was lodged. In managing the application, the relevant Commissioner has discretion in how the matter will be dealt with, which can include but isn’t limited to contacting the parties involved or holding a formal hearing.
In making an order, the Commissioner must conduct an objective assessment as to whether sexual harassment has occurred and whether there’s a risk that it will continue.
This process, although it may appear lengthy to a person who’s being subjected to sexual harassment, allows the Commissioner to conduct a thorough investigation of the matter and provide the employer and named individuals the opportunity to respond.
What can an order do?
There are a range of orders that can be made by the Commission if it deems it appropriate to do so, and these will be tailored to best address the situations flagged in the application. For example, this could range from preventing further communication between the individual named in the application and the worker, requiring a business to monitor an individual’s behaviour or update relevant workplace policies, or even changing working arrangements to best suit the worker. However, the Commission doesn’t have the power to impose financial penalties or compensation in this anti-sexual harassment jurisdiction.
Implementing robust anti-sexual harassment policies in the workplace plays an instrumental role in preventing misconduct in the first place and limiting disputes from being escalated to the Commission.
For comprehensive advice and guidance on how to best navigate this area or to ensure your workplace is compliant, please contact our team at HR Assured.
Not an HR Assured client and have questions about sexual harassment in the workplace? Contact the team at HR Assured for a confidential, no-obligation phone call.
Cala Ahmed is a Workplace Relations Advisor and assists a variety of clients via the Telephone Advisory Service. She is currently studying for a Bachelor of Business/ Law.
Courtney West is a Workplace Relations Advisor and assists a variety of clients via the Telephone Advisory Service. She is currently studying for a Bachelor of Laws/Bachelor of Arts.