On 24 December 2021, the Fair Work Commission (FWC) dismissed the first application to be heard based on the newly-legislated anti-sexual harassment provisions in the Fair Work Act 2009 (Cth), in the decision of THDL  FWC 6692.
The FWC can now make orders to prevent a worker from being bullied or sexually harassed where:
- a worker has been bullied or sexually harassed (or both) by an individual or a group of employees; and
- there is a risk that the worker will continue to be harassed or bullied at work by the individual or group of employees.
The decision to dismiss the application was based on a finding that there was no ongoing risk of bullying or sexual harassment to the relevant worker because:
- an intervention order against the named persons had been obtained "so that they are not to be within 200 metres of each other"; and
- the worker no longer worked in the same workplace as the alleged perpetrators.
The decision demonstrates the importance of an applicant being able to prove they are exposed to an ongoing risk of bullying or sexual harassment in order to obtain protective orders from the FWC. An applicant who no longer works with the alleged perpetrator is unlikely to be exposed to any ongoing risk and may not be able to enliven the FWC's power to make orders.
Applicants in a situation involving past sexual harassment are still able to seek compensation in other jurisdictions such as in an application to the Australian Human Rights Commission or the relevant state tribunal.
Key takeaway points for business
- The fact that bullying or harassment has occurred previously may not be enough to obtain an order from the FWC to stop or prevent future sexual harassment.
- Allowing applicants and alleged perpetrators to engage via virtual workspaces may still give rise to risk of sexual harassment or bullying.
- If an applicant has been subject to bullying or sexual harassment in the past and is not currently exposed to further risk, other jurisdictions outside of the FWC are more likely to be the appropriate vehicle for claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.