From November 11, a new process will enable those who experience sexual harassment in the workplace to apply for an order to have the behaviour to which they are subjected stop.
Enabled through amendments to the Fair Work Act, the Sex Discrimination Act and the Australian Human Rights Act, the process will enable those who feel they have been subjected to sexual harassment to apply to the Fair Work Commission for an order to have the behaviour cease.
The process can be used by any type of worker. This includes not only employees but trainees/apprentices, interns, volunteers or work experience students.
Where such an order is breached, a further application for a court order can be made. Where such a court order is subsequently breached, the defendant may be held to be in contempt of court.
As defined under the Sex Discrimination Act 1984, sexual harassment is any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature which could reasonably make a person feel offended, humiliated or intimidated.
Examples of conduct which may fall under this definition includes unwelcome physical contact, unnecessary familiarity, sexually suggestive comments, offensive or demeaning comments, sexually suggestive or explicit jokes, displaying of sexually suggestive or explicit pictures, physically blocking someone’s way, staring, following someone unnecessarily, repeatedly asking someone for a date or paying someone excessive amounts of (even non-sexual) attention.
Potentially, conduct which occurs outside work premises or after hours can be caught where the conduct in question occurs in circumstances which are connected to the employment, such work Christmas parties.
Importantly, it has now been confirmed that sexual harassment can be considered a valid reason for worker dismissal. In cases where the conduct is sufficient to be considered ‘serious misconduct’, termination can be immediate. In such a case, the staff member must leave as soon as possible and no payment in respect of notice periods is required.
As is well known, employers have a duty under WHS legislation to provide a safe and healthy environment for their workers. In carrying out this duty, they need to take reasonable steps to prevent risks to worker health and safety.
Sexual harassment is one such risk. As such employers need to reasonable steps to both prevent this from occurring and to address any issues which arise in a reasonable manner.
To fulfill these duties, clear policies and procedures are needed. These documents should be explained during worker onboarding or induction and should be available at all times.
This is not just about avoiding legal liability. It is common sense.
(Note: in and of itself, sexual harassment does not necessarily constitute a criminal offence. However, some forms of harassment may constitute an offence depending on the exact nature of conduct.)
When applying for orders for parties to cease sexual harassment, several points should be noted:
- To obtain an order, workers must still be employed at the workplace. (Any orders to cease conduct are meaningless if workers have already moved on.)
- Apart from that, there are no other qualifying criteria (such as a minimum length of employment as is the case with unfair dismissal law). Rather, for an order to made, the conduct in question simply needs needs to meet the definition of unlawful sexual harassment.
- Any singular or one-off incident can create grounds for an order to be made. This is unlike orders to cease bullying, in regard to which the behaviour in question needs to be continuous or repeated.
- The above process can only be used to obtain an order for conduct to cease. It cannot be used to obtain compensation. Instead, those seeking compensation will need to do so through other means such as claims for civil damages.
- In addition to (or rather than) the Fair Work Commission, workers may also make complaints to the Australian Human Rights Commission or one of the various state bodies such as the Equal Opportunity Commission.
- Workers may have representatives such as lawyers and unions either make a complaint on their behalf or assist them with their application.
- The process for making applications is straightforward and can be done online with a filing fee of $70. When doing this, legal representation is not necessary but can help to ensure the best outcome.
For more information, the ‘Sexual Harassment Benchbook’ on the Fair Work Commission website contains simple information which is easily understood.
Further information can be obtained through lawyers and human resources departments as well as the Fair Work Commission and the Fair Work Ombudsman.