New dispute resolution process for sexual harassment in Fair Work Commission
As part of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs Act) a new Part 3-5A – prohibiting workplace sexual harassment – will be inserted into the Fair Work Act 2009 (FW Act).
The amendments prohibit sexual harassment in all workplaces and come from recommendations made in the Respect@Work Report. The changes have overhauled the dispute resolutions processes available to those seeking to make complaints utilising the Fair Work Commission (FWC).
The new provisions will commence on 6 March 2023.
Under the new provisions, the term “employer” and “employee” will have their ordinary meaning and therefore extend beyond national system employers and employees.
The new Part 3-5A will make it unlawful for a person (the first person) to sexually harass another person (the second person) where the other person is 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.
Therefore, the protection will extend to sexual harassment perpetrated by third parties such as customers and clients.
The new provisions refer to "worker" as having the same meaning under the Work Health and Safety legislation. Therefore, the protection will apply to the following:
- workers, including employees, contractors, work experience students and volunteers;
- future workers; and
- anyone conducting a business or undertaking.
Sexual harassment FWC applications
Part 3-5A will provide a new process for managing disputes called a sexual harassment FWC application.
An aggrieved person or an industrial association entitled to represent the industrial interests of an aggrieved person will be able to make an application.
Under the new dispute resolution process, the FWC can:
- make a stop sexual harassment order to prevent future harassment; and
- additionally, the FWC can otherwise deal with the dispute.
An application to “otherwise deal with a dispute” is intended to provide an avenue for an aggrieved person to remedy past harm caused by sexual harassment.
The dispute process is modelled on s 365 of the FW Act (General protections in relation to dismissal disputes). Like other applications made before the FWC, there are timeframes for bringing an application before the FWC. The time for initial applications will be 24 months.
The FWC must initially deal with the dispute other than by arbitration (mediation, conciliation, or making a recommendation or expressing an opinion). If the dispute remains unresolved, the FWC can issue a certificate.
The matter can then proceed to arbitration by agreement. If the matter is arbitrated, the FWC can make a range of orders, including compensation or lost remuneration.
Alternatively, an aggrieved person or industrial association can make a court application within 60 days of issuing a certificate or 14 days after a party is removed from an application for arbitration.
Civil penalties are available in relation to several provisions ranging from 60 penalty units for an individual ($16,500) to 300 penalty units ($82,500) for a corporation.
The Secure Jobs Act also inserts a vicarious liability provision into the FW Act. The vicarious liability provisions are modelled on those contained in the Sex Discrimination Act 1984 (Cth), meaning a person or company will also be liable for sexual harassment committed by an employee or agent in connection with work unless they can prove that they took all reasonable steps to prevent the sexual harassment.
CCIWA can assist businesses in this area in the following ways:
- Free Respect@Work assessment Health Check is available on our website. This self-rated online assessment tool ensures that your business is legally protected and compliant against legal risks associated with sexual harassment and discrimination. The short online assessment will give you a total score and a breakdown of your legal compliance performance;
- Workplace audits – a more comprehensive assessment of whether your business is meeting its obligations in this area;
- Public training program – Dealing with Difficult Workplace Behaviours – Bullying and Sexual Harassment – where we discuss legal obligations in more detail and what proactive measures your business can take;
- Workplace investigations;
- Workplace policies and procedures;
- Instructor-led and online training – a Respectful Workplace Behaviour eLearning course and a range of seminars on the same topic – are available in 1-hour, 2-hour and 4-hour formats. We are also working with businesses to develop bystander training programs and policies; and
- Workplace mediation service – while not suitable in all situations, our accredited mediators have a high success rate. They can provide a fast, cost-effective, flexible and confidential way to resolve workplace disputes.