As part of the Secure Jobs, Better Pay reforms, the Fair Work Commission (“FWC”) was given new powers to address sexual harassment in the workplace. These new powers include giving the FWC the ability to issue stop sexual harassment orders where there is a clear risk that the harassment will continue.

Since coming into effect in March 2023, the FWC has now received 95 applications under the new provisions in the last year. In a recent case, the FWC had to consider whether the actions taken by an employer and the individual perpetrator were enough to show that there was no ongoing risk of sexual harassment.

What does the Fair Work Act say?

Under the Fair Work Act 2009 (Cth) (“FW Act”), the FWC can issue a stop sexual harassment order only if two conditions are satisfied:

1. the aggrieved person has been sexually harassed by one or more persons; and
2. there is a risk that the aggrieved person will continue to be sexually harassed.

The first part of the test requires that an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome conduct of a sexual nature has been made towards the aggrieved person.

The second part of the test requires the FWC to be satisfied that there is a risk to the aggrieved person that sexual harassment will continue to be perpetrated by the person or persons. A number of recent applications have been unsuccessful because they failed to show a continued risk.

A continued risk…

Several cases have failed where the employee has been unable to demonstrate that there is an ongoing risk of sexual harassment.

The recent case involved an employee who made a sexist remark in the workplace, which the FWC considered satisfied the first part of the test as it amounted to sexual harassment towards a fellow employee. However, the FW considered that:

• the individual who made the remark expressed remorse and said he had been wrong to make the remark (which was not directed at the employee, but the individual accepted it was unprofessional and inappropriate);
• the individual regretted making the employee uncomfortable;
• the employer had directed the individual to stay away from the employee and not involve himself in her work;
• the individual had complied with the direction to stay away from the employee; and
• the employer had committed to minimising the contact between the individual and employee as much as possible.

In light of these factors, the FWC found that a continued risk was not established and the FWC had no power to issue a stop sexual harassment order.

Takeaways for employers

If an employer encounters a situation involving sexual harassment, they must not only address the harassment that has already happened, but also take steps to prevent the risk of any harassment occurring in the future. Taking such preventative action is not just important in the context of an application under the FW Act, but also given work, health and safety obligations, discrimination obligations, as well as the relatively new positive duty to prevent sexual harassment, sex discrimination and victimisation in the workplace.

You can read more about stop sexual harassment orders and the duty of employment to take positive steps to eliminate sexual harassment in our blogs here and here.

Kirryn West James, Director and Daniel Prodigalidad, Paralegal