When stop sexual harassment orders should be used

Victims of sexual harassment in the workplace now have a new tool to put a rapid stop to offensive and harmful behaviour.

The stop sexual harassment orders are designed as a quick response – meaning the Fair Work Commission must start dealing with a complaint within 14 days.

Now the first ruling in a case by the Commission has highlighted when these orders should be used.

What are stop sexual harassment orders?

The Fair Work Commission now has the power to make stop sexual harassment orders.

We went into more detail about the new provisions of the Fair Work Act 2009 (Cth) (Fair Work Act) here.

The new powers mean the Commission can make any order it considers appropriate to prevent the worker from being sexually harassed at work.

Commission makes first decision:

The decision of Commissioner Yilmaz in THDL [2021] FWC 6692 is the first decision dealing with the new provisions.

In this case, THDL, the applicant, filed an application for stop bullying and stop sexual harassment orders against two individuals employed by an adjacent business which was located in the same warehouse as THDL’s business.

THDL sought orders from the Commission that the two named respondents be registered as ‘bad men’.

Too late to impose a stop sexual harassment order

Before considering the particulars of the alleged sexual harassment and bullying conduct, Commissioner Yilmaz formed the view that the application could not succeed, because:

• THDL’s business had moved out of the warehouse and was no longer adjacent to the respondents’ workplace.
• The parties no longer had any physical interaction, and would not cross paths while at work,
• there was no future risk of bullying or sexual harassment and therefore the application had no reasonable prospect of success.

Commissioner Yilmaz dismissed the application.

This decision highlights that stop sexual harassment orders were only available to prevent the conduct occurring in the future.

Prevention Vs. Compensation

The first ruling by the commission also shows the fundamental difference between the nature and purpose of stop sexual harassment provisions of the Fair Work Act, and the provisions of the Sex Discrimination Act 1984 (Cth) (SD Act), which prohibit sexual harassment in the workplace.

The provisions of the Fair Work Act are directed at preventing future conduct from occurring, and no compensation is available.

In contrast, the relevant provisions of the SD Act, allow an applicant to seek compensation for the damage that has already been caused by the unlawful conduct.

The remedy an applicant is seeking will therefore be determinative as to which path they should take to seek redress.