Amendments to The Fair Work Act as a result of the Secure Jobs, Better Pay Bill have expanded the Fair Work Commission's powers to address sexual harassment disputes. The new provisions, which came into effect on 6 March 2023, enable employees to apply to the Fair Work Commission (FWC) to deal with a sexual harassment dispute and obtain compensation, financial penalties, and other orders against perpetrators of workplace sexual harassment.
What has changed?
Sexual harassment in the workplace is now expressly prohibited. Under the new provisions, your employer can now be liable for sexual harassment conducted by an employee, a prospective employee, an agent of the business or a third party unless the employer can prove it took all reasonable steps to prevent the sexual harassment from occurring.
Employers have what is called a 'positive duty' to take reasonable measures to eliminate, as far as possible, unlawful sex discrimination and harassment in the workplace, and this duty has been strengthened under the changes. Essentially, all employers must be proactive in eliminating or managing hazards and risks to an employee, including sexual harassment.
To enhance the ability of employers and employees to address instances of sexual harassment, your employer may make changes to existing policies, provide information and training, and implement new or improved complaints processes.
Many individuals who have experienced sexual harassment at work are discouraged from taking action. To alleviate the burden on individuals, unions can now make the initial application to the FWC on behalf of a person/s or initiate court proceedings. The Fair Work Ombudsman (FWO) can also commence a court application against an employer for breaching the prohibition on sexual harassment in connection with work. In this instance, the FWO would bring proceedings as a regulator rather than on behalf of an individual.
Importantly the new provisions will not apply if the sexual harassment occurred before 6 March 2023 or is part of a course of conduct that began before that date, even if that conduct continues after the commencement of the provisions.
Avenues for employees
The new provisions complement (not replace) the prohibition on sexual harassment in the Sex Discrimination Act or similar state or territory legislation.
In addition to those existing avenues for recourse, an employee who alleges to have been sexually harassed at or in connection with work can apply to the FWC to:
- make a stop sexual harassment order, or
- deal with the issue under the new dispute resolution framework, or
- both make an order to stop sexual harassment and otherwise deal with the dispute.
How do I make a stop sexual harassment order?
The intention of an order to stop sexual harassment is to prevent any future harassment of an employee still connected to the workplace.
If you have experienced sexual harassment in connection with work, you are still employed at the company, and the incident or course of conduct occurred after 6 March 2023, you can now apply to the FWC to make a stop sexual harassment order.
Applications should generally be made within two years of the last incident of sexual harassment and can be made jointly by one or more aggrieved persons against one or more individuals or employers.
Once you apply, the FWC will seek to assist the parties to resolve the dispute, or they can make a determination if the matter is not settled.
Asking the Fair Work Commission to deal with the dispute
Applications for the FWC to otherwise deal with the dispute are intended to remedy past harm caused by sexual harassment. Unlike a stop sexual harassment order, an employee does not need to be connected to the workplace to deal with the dispute this way.
The FWC will seek to assist the parties in resolving the dispute by conciliating, making a recommendation or expressing an opinion.
If the dispute cannot be settled, the FWC will issue a certificate, following which you may seek agreement for the matter to proceed to consent arbitration, or you can choose to bring proceedings in court.