Implementation of the Fair Work Commission’s expanded sexual harassment jurisdiction

The amendments to the Fair Work Act 2009 (the Act), introduced as part of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs, Better Pay Act) (SJBP Act), include new provisions that prohibit sexual harassment in connection with the workplace and expand the Fair Work Commission’s (FWC) jurisdiction to deal with contraventions of the Act. The amendments implement further recommendations of the Respect@Work Report, which was published in March 2020.

Key changes

• It is now unlawful for a person to sexually harass:
  • A worker in a business or undertaking; or
  • A person seeking to become a worker in a business or undertaking; or
  • A person conducting a business or undertaking; and
• Employers may be found liable for the sexual harassment committed by their employees or agents.
• The changes encompass sexual harassment committed by third parties, such as customers and clients, towards workers, prospective workers or conductors of a business or undertaking.
• If a person alleges that they have been sexually harassed in connection with work, they may make an application for the FWC to either make a stop sexual harassment order or otherwise deal with the dispute, or both.
• Applies to all Australian workers.

The SJBP amendments in part came into effect from 7 December 2022, with further amendments to commence at different times throughout 2023.  The new part dealing with sexual harassment will allow for applications to be made on and from 6 March 2023.  The stop sexual harassment provisions will apply to the sexual harassment of a worker at work before commencement and to sexual harassment of a worker at work that is part of a course of conduct that began before commencement.  The new prohibition of sexual harassment that is part of a course of conduct occurring will operate from 6 March 2023, being the effective date of those provisions.

The FWC recently published an implementation report addressing the amendments to the Act and introduces proposed new policies and forms to assist with the prevention of sexual harassment in connection with work. We will provide a further Legal Alert once these have been finalised.

Applies to all Australian workers

It is important to note that the implementation of the new sexual harassment protections will be extended to all Australian workers, whether they are a ‘national system employer’ and covered by the national employment system of regulation or not.

The new prohibition on sexual harassment in section 527D of the Fair Work Act expands the definition of who a ‘person’ is in relation to sexual harassment in connection to work, now including prospective employees, such that:

A person (the first person) must not sexually harass another person (the second person) who is:

1. A worker in a business or undertaking,
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 one of the above kinds.

The provisions are designed to protect all workers, including employees and prospective employees from sexual harassment by third parties, including customers or clients of a business, in connection with work.

Because the provisions also provide that employers can be vicariously liable for the acts of their employees or agents who sexually harass, employers may be personally named in sexual harassment claims and held liable where there is a failure to take all reasonable steps to prevent the sexual harassment from occurring.  The risk to employers is significant given that the FWC will have the jurisdiction to make orders for compensation for economic and non-economic loss, amongst other remedies.

What does this mean for employers?

The changes create an obligation for persons conducting a business or undertaking to take all reasonable steps to ensure sexual harassment does not occur in connection with work.  With new avenues for redress available to workers, businesses and employers should be taking additional steps as soon as possible to review its policies, training, and consultation mechanisms with workers, to ensure compliance and eliminate the risk of sexual harassment.

If you would like to receive specific advice or training to better understand the recent changes to the Act and how they impact on your workplace, EMA Legal will be offering up-to-45-minute ‘snap’ training sessions – for groups of no greater than 10 people delivered online. If you are interested, and wish to know more, please don’t hesitate to contact one of our solicitors to discuss.