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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:
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.
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.
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:
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:
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.
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
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.
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.
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
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.
‘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:
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.
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:
Information on how to make this kind of application can be found on the Fair Work Website at the following links:
The following remedies are available if a matter proceeds to arbitration in the FWC:
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.
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.