Prohibiting Sexual Harassment in Connection with Work

*Note the information in this Alert takes account of the passage of the Bill on 2 December 2022 and subsequent Royal Assent.

The Fair Work Act now includes a new Part 3-5A, which prohibits sexual harassment in connection with work, implementing further the recommendations of the Respect@Work Report. The amendments have overhauled the dispute resolution processes available to parties seeking to make complaints of workplace sexual harassment utilising the resources of the Fair Work Commission (FWC).

Prohibition

The new section 527D of the Fair Work Act declares it unlawful for a person to sexually harass another person who is:

1. A worker in a business or undertaking; or
2. Seeking to become a worker in a particular business or undertaking; or
3. A person conducting a business or undertaking;

if the harassment occurs in connection with the second person being a person of the kind in paragraph (a), (b) or (c).

The protections extend to a ‘worker’ as that term is defined in the Work Health and Safety Act 2011 (WHS Act), and includes contractors, outworkers, apprentices, trainees, volunteers or a student gaining work experience. Similarly, the term ‘business or undertaking’ carries the same meaning as the WHS Act to ensure maximum coverage of the protections. Importantly, the new regime relies on the Commonwealth’s external affairs power, which means that its application will extend to all Australian workers, prospective workers and persons conducting businesses or undertakings (with some very limited exceptions pertaining to federal defence and security agencies). The amendments are not limited to constitutionally-covered corporations, like the anti-bullying provisions are in the Fair Work Act.

The prohibition if breached is punishable by way of a civil penalties. This operates in addition to a right to claim uncapped damages and other remedies and can be imposed on any person who is found to have engaged in workplace sexual harassment. Section 527E maintains the rule that employers can also be vicariously liable for offending conduct, unless they can prove all reasonable steps were taken to prevent the employee or agent from doing the acts which contravened the protection against sexual harassment.

Dispute Resolution

Under the new section 527F, an ‘aggrieved person’ or industrial association (which may be a union) can apply to the FWC against one or more respondents to do one or both of the following:

1. Make an order to stop sexual harassment (a stop order) and/or
2. Otherwise deal with the dispute.

The order to stop sexual harassment, while now contained within Part 3-5A, will operate in the same manner as before the amendments (you can read our previous alert on these orders here). The objective is to provide those who are subject to sexual harassment with protections against future harassment, and remedies for historical acts of harassment.

The FWC can dismiss an application that is made more than 24 months after the alleged contravention, aligning this with the time limitations for claims under the Sex Discrimination Act 1984 (Cth).

The procedure for ‘otherwise dealing with a dispute’ before the FWC is modelled on the general protections claim procedures. Applications will first be the subject of a conciliation process before the FWC, and if unresolved, a certificate issued to enable a federal court application or arbitration in the FWC, by agreement. Complainants will have 60 days from the issue of a certificate to make an application in the federal court.

Complainants cannot pursue claims in the FWC if they already have a complaint for the same conduct made in the Equal Opportunity Commission or Australian Human Rights Commission.

Impact on employers

The changes brought by the Secure Jobs, Better Pay Act squarely place responsibility on businesses and undertakings to take positive steps to eliminate workplace sexual harassment where this has the potential to harm workers in connection with their work. Businesses must review their workplace sexual harassment policies and procedures in light of these and other recent changes.