On 7 December 2022, the Federal Government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which introduced several new workplace laws. One significant change was the introduction of Part 3-5A of the Fair Work Act 2009 (Cth) (FW Act), which prohibits sexual harassment in connection with work and came into effect on 6 March 2023.
Before this legislative change, the Fair Work Commission (FWC) had powers to make orders to stop sexual harassment under Part 6-4B of the FW Act. This power was introduced as part of amendments to the FW Act in 2021, which expanded the FWC's pre-existing powers with respect to workplace bullying to also apply to sexual harassment.
As with workplace bullying, however, the FWC's power to make a 'stop sexual harassment' order was limited to circumstances in which there was an ongoing risk of sexual harassment. Financial penalties could only be imposed by a Court where sexual harassment subsequently occurred contrary to a stop sexual harassment order made by the Commission.
You can read more about the old protections in our earlier blog, "Sexual harassment in the workplace: Australia's first stop sexual harassment case".
Sexual harassment definition under the Fair Work Act
The FW Act adopts the definition of 'sexual harassment' that is provided under the Sex Discrimination Act 1984 (Cth), namely:
28A Meaning of sexual harassment
- For the purposes of this Act, a person sexually harasses
another person (the person harassed) if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
The prohibition
The new prohibition on sexual harassment in connection with work is provided by s.527D of the Act:
- A person (the first person ) must not sexually harass
another person (the second person ) who is:
- a worker in a business or undertaking; or
- seeking to become a worker in a particular business or undertaking; or
- a person conducting a business or undertaking;
if the harassment occurs in connection with the second person being a person of the kind mentioned in paragraph (a), (b) or (c).
New workplace sexual harassment protections introduced in March 2023
The new sexual harassment provisions, which stand apart from the 'stop bullying' regime, retain aspects of the previous provisions introduced in 2021.
The FWC maintains its power to make 'stop sexual harassment' orders where there is a risk of sexual harassment in the future. However, in addition to this, an aggrieved party may now make an application for the FWC to deal with a sexual harassment dispute, including through conciliation, mediation, and by making recommendations. These provisions essentially mirror those that relate to having general protections disputes at the FWC.
If all reasonable attempts to resolve the sexual harassment dispute via these processes are unsuccessful, the FWC may arbitrate the dispute, but only with the consent of both parties.
This is an unfortunate weakness of the new provisions, as based on our experience in other areas, respondents may well be unlikely to agree to arbitration. In the event that there is consent, at arbitration the Commission is expressly empowered to make awards of compensation and remuneration for lost income and orders requiring a respondent to perform any reasonable act to redress loss or damage suffered by the applicant.
If there is no consent to arbitration, then the Commission can issue a certificate, and the aggrieved person can then proceed to Court. If this occurs, the Court is then empowered to impose penalties for the contravention of the sexual harassment prohibition, along with compensation and other remedies.
In addition, the protections now apply to sexual harassment 'in connection with' work, which is wider than the previous requirement that sexual harassment occurred "at work".
Employers can also be held vicariously liable for sexual harassment done by its employees, provided that the sexual harassment occurred in connection with their employment. An employer will not be held liable where they can show that they took all reasonable steps to prevent the employee from doing the sexual harassment.
Significance of the new sexual harassment laws for workers?
The new sexual harassment protections represent a widening and strengthening of the previous protections. The introduction of the prohibition on sexual harassment brings with it a new potential cause of action to potential applicants. In addition to orders to stop future sexual harassment, workers now benefit from the possibility of a final determination of sexual harassment complaints, including the possibility of compensation and penalty.
While arbitration and court determination require that conciliation and mediation options have first been exhausted (and in the case of arbitration, consent of the respondent), this is certainly a positive step in the direction of stronger protections against sexual harassment in the workplace. This is particularly the case in light of the introduction of the 'positive duty' on all employers to take proactive reasonable steps to eliminate sexual harassment in the workplace.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
