Time to get serious about sexual harassment
On 10 September 2021, our federal parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which, among other measures, provided the Fair Work Commission with new powers to receive complaints of sexual harassment and to issue orders for the sexual harassment to stop.
These powers (which are similar to those that the FWC already has for issuing orders to stop bullying) came into operation on 11 November 2021.
What is sexual harassment?
A person sexually harasses another person if they:
- make an unwelcome sexual advance
- make an unwelcome request for sexual favours
- engage in other unwelcome conduct of a sexual nature in relation to the person harassed.
The first two of those are things that any reasonable person would see as clearly falling into the category of sexual harassment. It is the third one “unwelcome conduct of a sexual nature” that gets a bit murkier. Some examples of such conduct might include:
- sexually suggestive comments or jokes;
- intrusive questions about private life or physical appearance;
- unwanted invitations to go on dates;
- sending sexually explicit or suggestive pictures or gifts to a worker, or displaying sexually explicit or suggestive pictures, posters, screensavers or objects in the work environment or by email or text or social media connection;
- intimidating or threatening behaviours such as inappropriate staring or leering, sexual gestures, or following, watching or loitering;
- inappropriate physical contact, such as deliberately brushing up against a person, or unwelcome touching, hugging, cornering or kissing; and
- the list goes on.
So it isn’t just a question of someone trying to pressure someone into having sex, it is anything of a sexual nature which would potentially make someone uncomfortable whether in the physical or virtual workplace or online and on social media.
Who is covered by the legislation?
The legislation uses the definition of a worker under the federal “Work Health and Safety Act 2011” to describe who can make an application to stop sexual harassment. This includes:
- an employee including an outworker, apprentice or trainee
- a contractor or subcontractor (and their employees)
- an employee of a labour hire company working in your business
- a student gaining work experience
- some volunteers
Importantly, when it comes to the identity of the alleged perpetrator of sexual harassment, the same broad context applies – anyone who the applicant comes into contact with as part of their work can be the alleged instigator of sexual harassment. This includes workplace visitors, customers and suppliers and their employees or sub-contractors.
What criteria must be satisfied for the FWC to issue orders to stop sexual harassment?
For the FWC to be able to make an order to stop sexual harassment, it must be satisfied not only that a worker has been sexually harassed at work by an individual or individuals (the persons named in the application), but also that there is a risk that the worker will continue to be sexually harassed at work by that individual or those individuals.
What can the FWC order?
There is the ability for the parties to an application to agree on consent orders to resolve the matter and they are then bound to comply with those consent orders.
For example, the parties could agree to:
- changes in work arrangements, including in lines of reporting or work locations
- an apology
- a reference or statement of service (if the employment relationship has ended)
- commitments by the employer or principal to investigate a complaint or to train staff or to review and update its policies or conduct a workplace risk assessment.
This list is not exclusive and what is agreed will depend on the specific circumstances of the case and the workplace in question.
The focus for the FWC is to try to assure the future safety of the applicant from the sexual harassment complained of.
So, in these cases, the FWC does not have powers to award compensation or, for an employee who has resigned or been terminated, to direct reinstatement.
What should employers do?
You need to do all of the policy and education stuff that you need to do with any workplace relations matter to be able to demonstrate compliance.
Now though it is time to make it real – so do a sexual harassment risk assessment and create and implement a risk control plan. Starting with yourself and your management team, identify behaviours that any of your people might practise or experience at work that need to be corrected because they potentially constitute sexual harassment or bullying. Then deal with them – kindly but firmly and regardless of who is involved because that is the right thing to do.
Need help? Give us a call to arrange your first free consultation on 0438 533 311 or at enquiries@ridgelinehr.com.au.