Over recent years, gender equality and sexual harassment have very much been in the news. That gave rise to our own National Inquiry into Sexual Harassment in Australian Workplaces undertaken by the Australian Human Rights Commission.
Last year, they released the Respect@Work Report on the findings from that inquiry which included:.
- that sexual harassment is rife in Australian workplaces and
- that fundamental systemic change is necessary to protect women’s safety at work and participation in the workforce.
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;
- unwanted written declarations of love;
- 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;
- 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;
- sexually explicit or suggestive emails, SMS or social media (including the use of emojis with sexual connotations), indecent phone calls, circulating pornography or other sexually graphic imagery, or sharing or threatening to share intimate images or film without consent.
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
- 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?
The first thing that all employers need to do is to accept the reality that sexual harassment is probably happening in your workplace in one form or another and that you have a legal responsibility to stop it.
Secondly, educate yourself and your management team about sexual harassment, your responsibilities and what you need to do to assure a workplace free of sexual harassment.
Next, review and update your policies and procedures around respectful workplace conduct (or, conversely, discrimination, harassment and bullying) ensuring that they are clear in explanation, practical in application and effective in supporting people to comply with them and to deal with non-compliances in a supportive way.
Then, ensure that all of your people understand the rules, what sexual harassment is and the processes for dealing with it and what they need to do conduct themselves respectfully.
Finally, 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 in getting the right things in place, getting your people on board or dealing with complaints? Then contact us