Sexual Harassment in the Workplace

Background

After much campaigning by Working Womens Centres, unions, feminists, and activists, significant changes have been made to Australia’s workplace laws in relation to sexual harassment as of December 2022. 

The Sex Discrimination Commissioner, Kate Jenkins, released a report in 2020 of which the Commissioner made 55 recommendations for the elimination of workplace sexual harassment. 

Some notable recommendations which have now been legislated by parliament to form part of Australia’s employment laws are the following:
 

• Recommendation 17: From 13th December 2022, all employers and persons conducting a business or undertaking now have a positive obligation to take reasonable proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible. 

• Recommendation 29: The Fair Work Commission can now make orders to ‘stop sexual harassment’ upon application.
   
• Recommendation 31: Sexual Harassment is now classified as serious misconduct under Australia’s national employment laws. This means perpetrating sexual harassment is a valid ground for immediate termination of employment. 

What does this positive obligation mean for me at work? 

Positive obligation means that your employer, or person who is conducting a business or undertaking that you work for, has a responsibility to prevent sexual harassment from occurring in the workplace. This is a shift from employers previously only being legally liable on behalf of a sexual harasser, after the sexual harassment has occurred. These new laws means that an employer or person conducting a business or undertaking must be proactive and take preventative action to stop sexual harassment from occurring in the workplace.  

This obligation on a person conducting a business or undertaking (PCBU) to prevent sexual harassment extends beyond harassment perpetrated by colleagues and/or management internally. This extends to perpetration externally from customers, sales representatives etc. 

What is a PCUB? 

A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers. This is a term often used in Work Health and Safety laws. Some PCUB’s are not always employers so the use of both terms captures a wider group of responsible people.  

What should my employer or a PCUB be doing to prevent sexual harassment?  

There are many steps your employer can take in order to prevent sexual harassment. This will depend on the size of the business as to what is considered a ‘reasonable step’. Some of those steps are:
 

1. Develop a policy that has a 0 tolerance for sexual harassment and clearly sets out a reporting mechanism and process for the discipline and dismissal of sexual harassment perpetrators. The policy should state that sexual harassment is unlawful, provide a definition and or examples of sexual harassment.
    
2. Provide training to all staff members about their rights and responsibilities as it pertains to their specific roles within the organisation  as set out in the policy.
    
3. Display this policy in a common area and ensure it is easily accessible for all employees and/or management.
    
4. Conduct workplace training on the causes of sexual harassment and how to prevent it. This training should only be conducted by experts in the field (like the Working Women’s Centre SA Inc).
     
5. Assess any risk factors specific to each industry and/or business (for example: live in arrangements, geographic isolation of work, work performed in close physical proximity to people etc.).
    
6. Medium and large employers should undertake regular audits to monitor prevalence and/or occurrences of sexual harassment in their workplaces. 

What can I do if I am sexually harassed at work? What do I do if my employer breaches their obligation? 

Options Before 6 March 2023 

If you experience sexual harassment (one or more incidents) before 6 March 2023, you could if comfortable and safe do the following:  

1. Make an internal complaint about the incident. Before you make a formal complaint, we suggest that you familiarise yourself with sexual harassment, gender equality or work health and safety policies. It is always a good idea to understand the process your employer will take when they are receiving and responding to your complaint. If the perpetrator is your supervisor or in a management role, we recommend that you seek advice about the risks of making that complaint.  
    
2. If the sexual harassment has caused you to suffer from a workplace injury and you have no or restricted ability to work, you could make a worker’s compensation claim. For information about this process, please read our fact sheet here:  https://wwcsa.org.au/resources/sexual-harassment-at-work-should-you-make-a-workers-compensation-claim/  
    
3. You can make a sexual harassment and discrimination complaint to the Australian Human Right’s Commission.  Alternatively-  
    
4. You could lodge a sexual harassment and/or discrimination complaint/dispute in the South Australian Equal Opportunity Commission.  
     
5. You can apply to stop the bullying or sexual harassment in the Fair Work Commission. 

It is important to remember that generally you cannot ‘double dip’ when deciding what claim to make. This means you can only file an application in one of either the AHRC or EOC. Compensation can only be received in one Commission. You can make a worker’s compensation claim and lodge a claim in either the AHRC or EOC. There are some exceptions to the double dip rule, so if you have questions about this, please get in contact with us.  

For more information about these options please read our fact sheet about sexual harassment in the workplace: https://wwcsa.org.au/resources/sexual-harassment-legal-options/ or give our Centre a call and book an appointment for legal advice.  

Making a Sexual Harassment Dispute Fair Work Commission 

If you have experienced sexual harassment in connection with your workplace, on 6 March 2023 or after you will be able to lodge a dispute with the Fair Work Commission.  

Who can lodge a dispute? 

If you are being sexual harassed and you are  

• a worker in a business or undertaking   
   
• seeking to become a worker in a particular business or undertaking or  
   
• a person conducting a business or undertaking and the harassment occurs or relates to a workplace or business.  

and 

The first or only incident of sexual harassment occurred on or after 6 March 2023, then you can lodge a dispute in the Fair Work Commission.  

Who do you lodge the dispute against?  

You can lodge the dispute against the person(s) who sexually harassed you and the employer that you’re both employed by. You can also lodge a claim against a PCUB. It might be that you say your employer and or the PCUB should have prevented the harassment or they did not respond to it well.  

Forms 

To lodge a dispute, you need to complete the f75 form. and you can find it here https://www.fwc.gov.au/apply-resolve-sexual-harassment-dispute-form-f75. After you lodge a dispute,  you will receive a phone call from the Fair Work Commission confirming that they have received your application. At this point, with your consent, your application will be sent to the people and/or employers named in your application. 

The perpetrators and employer will have an opportunity to provide a written response to your application. This is also a FWC form, and this response will be sent to the FWC and then it will be sent to you.  

Conciliation stage  

At this stage, a confidential conciliation conference will be held. The way this conference is conducted will be a matter for the FWC member, however the member will contact you and ask you about your preferences and take care to keep all parties safe. This might mean that you won’t see the employer or perpetrator at the conciliation, and you will be in separate rooms for the entire period. It might mean that the conciliation conference is conducted on the telephone, or it might be that no conciliation conference is listed, and the matter is listed for a hearing. The FWC is taking steps to be victim centric and so your opinion and preference will be considered.  

What can you ask for?  

At the conciliation stage, you can make settlement offers based on what could be ordered if you were to go to a hearing and win. You can ask for 

• Payment of compensation (pain and suffering) to an aggrieved person in relation to the sexual harassment  
   
• A payment for lost wages (historical or in the future) 
   
• That the employer and perpetrator act in some way. This might be that you ask the employer has training or implements a prevention of a sexual harassment policy.  
   

Hearing 

If you dispute does not settle at conciliation, and all parties agree for it to stay at the FWC then your dispute will be listed for a hearing. This means that a member of the FWC will preside over a hearing about your dispute. A hearing will call for witness statements, submissions about how the law works and applies to the facts in your witness statement, and cross examination of both parties’ witnesses.   

What is the different between a Stop Sexual Harassment Order and Sexual Harassment Dispute?  

‘A stop sexual harassment order’ is intended to prevent any future harassment, while an application for the FWC to otherwise deal with the dispute is intended to remedy past harm caused by sexual harassment. You can make both a stop sexual harassment application and lodge a sexual harassment dispute at the same time. 

Stop Sexual Harassment Claim  

If you are still in employment and the sexual harassment continues, then you can make an Application in the Fair Work Commission (FWC) to ‘Stop Sexual Harassment’. The matter will be listed for a Conciliation where the parties will have the opportunity to negotiate an agreement facilitated by a conciliator. 

If this conciliation is unsuccessful and the parties are unable to reach an agreement, there are two avenues to further pursue the claim: 

1. With consent of both parties, proceed to Arbitration in the FWC. Arbitration gives power to the FWC to award compensation and/or make an order for sexual harassment to stop; or 
2. If consent is not obtained from both parties, the Applicant request a certificate from the FWC to file proceedings in the Federal Circuit Court within 14 days. 

• It is important to note that these changes to the Fair Work Act 2009 (cth) have no effect on State/Territory WHS or discrimination laws 

These changes to the Fair Work Act 2009 (Cth) commence on 6 March 2023.  It is important to note that conduct that has occurred before 6 March 2023 will not be covered unless the conduct is ongoing. 

How do I make a Stop Sexual Harassment Application in the FWC?  

To file a Stop Sexual Harassment Application in the Fair Work Commission, you need to file a Form F72 in the Fair Work Commission. There is a fee of $77.80 to make this application, however, you can apply for a fee waiver if it would cause financial hardship.  

To make a Stop Sexual Harassment Application, you will need to set out the following in your application: 

• Filling in the respective details of your employer and the alleged perpetrator 
• Two examples of the behaviours that are sexual harassment
•  Explain how this behavior has created a risk to your health and safety (Anxiety, stress etc.)
• Whether you have followed any internal processes or reported this behaviour to management 
• What you would like the outcome of your Application to be. 

Information on how to make this kind of application can be found on the Fair Work Website at the following links: 

• https://www.fwc.gov.au/orders-stop-bullying-or-sexual-harassment-or-both-work
   
• https://www.fwc.gov.au/form/apply-stop-workplace-bullying-form-f72

What you can get out of a Stop Sexual Harassment Complaint?

The following remedies are available if a matter proceeds to arbitration in the FWC:

• A ‘Stop Sexual Harassment Order’ made by the FWC; an
• Compensation for economic loss (loss of wages if you have had to take time off work etc); an
• Compensation for non-economic loss (humiliation, pain, suffering etc).

Other Options to Make a Sexual Harassment Claim 

• Australian Human Rights Commission (AHRC)

A complaint form can be filled out online and submitted on the AHRC website. There is a 24 month timeframe from the date of sexual harassment to make a complaint in the AHRC. You should contact the Working Women’s Centre SA for legal advice on your particular matter.
 

• Equal Opportunity Commission (EOC)

A complaint form can be filled out online and submitted on the AHRC website. There is a 12-month timeframe from the date of sexual harassment to make a complaint in the EOC. You should contact the Working Women’s Centre SA for legal advice on your particular matter.