The Fair Work Commission can now make orders to stop sexual harassment in the workplace. Samuel Ellemor, Accredited Specialist (Workplace Relations), explains.
Introduction
The Fair Work Commission can now make orders to stop sexual harassment in the workplace, in the same manner that it can make orders in relation to bullying.
A worker can make an application to the Fair Work Commission, if they reasonably believe that they have been sexually harassed in the workplace.
What is sexual harassment?
Section 28A of the Sex Discrimination Act 1984 (Cth) provides that a person engages in sexual harassment if they engage in ‘an unwelcome sexual advance, or an unwelcome request for sexual favours’, or ‘other unwelcome conduct of a sexual nature’, in relation to the person who was harassed. This behaviour must also be in circumstances in which a reasonable person, having regard to all of the circumstances, would have anticipated the possibility that the person who was harassed would be offended, humiliated or intimidated.
Sexual harassment can include requests for sexual favours, unwanted physical contact such as touching or kissing, verbal comments of a sexual nature and showing a person pornographic or sexually suggestive material.
Who is a worker in a workplace?
For the purposes the Fair Work Commission’s sexual harassment jurisdiction, a ‘worker’ means a person who is carrying out work in any capacity for a person conducting a business or undertaking. This includes, but is not limited to, employees. Other types of workers that can be protected include contractors, labour hire workers, apprentices, work experience students and volunteers.
However, despite the broad definition of a 'worker', there are constitutional limits on the extent of the Fair Work Commission’s jurisdiction. Most workers working for private companies will fall within the scope of the Commission’s jurisdiction, but not all people working for not-for-profit organisations, State and local government, partnerships and sole traders will be able to seek remedies for sexual harassment in the Commission. For workers in these types of entities, it is important to seek legal advice to ascertain whether the Commission has the power to make orders with respect to that business or organisation.
What orders can the Fair Work Commission make?
If the Fair Work Commission finds that a worker has been sexually harassed at work, they can make orders that the sexual harassment must stop. The orders can be directed at both the perpetrator and the business.
The Commission can only make an order in relation to sexual harassment if it finds that there is a risk that the sexual harassment will continue.
If so, the Commission can make any order that it considers appropriate to prevent ongoing sexual harassment. However, the Commission cannot make orders for monetary compensation, because the sole purpose of the Commission’s orders is to prevent future wrongdoing, not to compensate the worker for previous harassment they have experienced.
Alternatives to the Fair Work Commission's sexual harassment orders
Applying to the Fair Work Commission is not the only way of dealing with sexual harassment in the workplace. The Fair Work Commission’s sexual harassment jurisdiction will be appropriate in some, but not all, situations where a worker has been sexually harassed.
Workers who have been sexually harassed can also seek remedies under State and Federal anti-discrimination legislation. These claims would usually be made by the complainant making a complaint to either the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission. A complainant in a claim made under State and Federal anti-discrimination legislation can seek redress for past wrongs, including monetary compensation, and claims under anti-discrimination legislation do not have the same jurisdictional limits that apply to proceedings under the Fair Work Act 2009 (Cth).
We recommend that workers who have been sexually harassed obtain legal advice to ascertain which course of action is most appropriate for their situation. This may, but will not always, involve taking legal action.
How Sharrock Pitman Legal can assist?
Where a business or organisation receives a sexual harassment complaint, it is essential to ensure that the complaint is properly addressed immediately, and any broader issues within the business or organisation identified and dealt with in a timely manner. If a complaint cannot be resolved at the outset and legal proceedings eventuate, then businesses and organisations should seek legal advice as to how best to respond to the claim.
If you or your organisation is a party to a sexual harassment complaint, please do not hesitate to contact a member of our Employment Law team by email or call 1300 205 506.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
For further information contact
Samuel Ellemor
Samuel Ellemor is a Senior Associate and Accredited Specialist in Workplace Relations Law, with expertise assisting individuals, businesses and not-for-profit organisations across abroad range of employment, commercial and not-for-profit matters. Samuel can be contacted directly on (03) 8561 3316.
