Tackling sexual harassment in the workplace

The #MeToo movement shone a harsh spotlight on just how prevalent sexual harassment was in many workplaces.

A flood of personal accounts from employees who had been subjected to unwanted sexual behaviour at work exposed wide-spread predatory behaviour.

The Respect@Work: Sexual Harassment National Inquiry was launched in Australia to improve employee safeguards. The report it published highlighted the scale of the problem – noting one in three Australian’s experience sexual harassment in the workplace in the last five years.

In an attempt to tackle the problem, it made a number of recommendations – including stop the sexual harassment orders.

These orders have now been written into the Fair Work Act and enable victims of sexual harassment to apply to the Fair Work Commission to intervene and fast-track a remedy.

But when can they be used and how do they work?

What is sexual harassment?

Sexual harassment is when someone makes unwelcome sexual advance or asks for sexual favours, or engages in other unwanted conduct of a sexual nature.

It can be sexual jokes or comments, sexualised physical contact, persistent requests for a relationship, or any other unwelcome conduct of a sexual nature.

To be unlawful, it must occur in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated. It is not necessary that the person harassed actually feels offended, humiliated or intimidated. 

What are ‘stop sexual harassment orders’?

If a worker has been sexually harassed at work, they may apply to the Fair Work Commission under section 789FD of the Fair Work Act for orders to stop the sexual harassment.

The commission can make such orders if they are satisfied that:

• the worker has been sexually harassed at work by one or more individuals; and,
• there is a risk they will continue to be sexually harassed at work.
   

In those circumstances, the Commission can make any order it considers appropriate to prevent the worker from being sexually harassed at work.

In making its orders, the FWC will consider:

• any internal investigation that has been or is being conducted, and its outcome;
• any internal dispute resolution procedure available to the worker; and,
• any other matters the FWC considers relevant.
   

The commission cannot order the payment of any compensation.

What is the process of an application?

A key feature of this new process is the speed with which an alleged victim can get action.

The commission is required to start to deal with the application within 14 days. It will then serve a copy of the application on the respondents, and they will provide their response.

The matter will then be set down for a conciliation conference. This is a semi-formal setting in which the parties are assisted, by a conciliator, to resolve the application.

When can I make an application for orders to stop sexual harassment?

Any employee whose employment is covered by the Fair Work Act – which is most private sector workers, and some public sector workers - can make an application for orders to stop sexual harassment.

Importantly, an application can only be made while the person is still an employee. This is because the orders are aimed at allowing workers to return to a workplace that is safe and free from sexual harassment.

This process is a new tool in preventing sexual harassment in the workplace from reoccurring. 

Most importantly, these amendments recognise that sexual harassment in the workplace is – first and foremost – a risk to health and safety which cannot be permitted to continue.