Commencement of stop sexual harassment orders in the Fair Work Commission will provide new protections for workers

Commencement of stop sexual harassment orders in the Fair Work Commission will provide new protections for workers

02 November 2021 Authored by: Annie Smeaton, Megan Cheng & Sandra Barry   |   Topics: Workplace relations and safety

From 11 November 2021, a worker who has been sexually harassed at work will be able to apply to the Fair Work Commission (Commission) for an order to stop the sexual harassment. It is now time for businesses to urgently review their sexual harassment policies and complaint handling processes.

What is a stop sexual harassment order?

The introduction of orders to stop sexual harassment into the Fair Work Act 2009 (Cth) was adopted after the Respect@Work: Sexual Harassment National Inquiry Report revealed the prevalence of sexual harassment in Australian workplaces.

Sexual harassment is unwelcome conduct of a sexual nature in circumstances where a reasonable person would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

A stop sexual harassment order aims to prevent a worker from being sexually harassed at work by either an individual or a group of individuals. Workers can apply for a stop sexual harassment order after the first incidence of sexual harassment. It is unnecessary for the worker to show that there is a continued risk to their health and safety prior to the Fair Work Commission making a stop sexual harassment order.

What will the Commission do?

The Commission must start to deal with an application to stop sexual harassment within 14 days. For example, the Commission may:

  • require people to provide copies of documents, records or other information
  • require people to attend before the Commission
  • direct people to attend a conciliation conference at a specified time or place
  • hold a hearing to deal with the dispute.

These steps may be highly onerous, expensive and time consuming for businesses. They will also need to be complied with in a short period of time, especially if businesses do not have adequate sexual harassment policies or have not kept sufficient records of how complaints have been handled.

What orders can the Commission make?

Under section 789FF of the Fair Work Act 2009 (Cth), the Commission may make any order it considers appropriate to prevent the worker from being sexually harassed at work if it is satisfied that:

  • the worker has been sexually harassed at work; and
  • there is a risk that the worker will continue to be sexually harassed at work by the individual or group of individuals.

The Commission must take into account any procedures that are available to the worker to resolve grievances or disputes, and outcomes from any investigations or dispute resolution procedures.

While the Commission cannot order a pecuniary payment, it could prevent workers from being in the same room as each other, require a worker to report to a different manager, order businesses to conduct training or update their policies, or require businesses to regularly monitor a worker’s behaviour.

What does this mean for my business?

It is important that businesses establish a procedure for responding to any applications to stop sexual harassment in the workplace. This could include reviewing any recent sexual harassment complaints, ensuring there is adequate documentation detailing how complaints have been dealt with, and considering whether all workers have received training and read your sexual harassment policy.

Employers need to ensure they are taking all reasonable and possible steps to prevent sexual harassment in the workplace as it will soon be open to the Commission to make orders that are highly onerous, costly and potentially disruptive for employers.

For further information or assistance in reviewing your policies, please contact a member of Cooper Grace Ward’s workplace relations and safety team.

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