Stop Orders (sexual harassment)
This article is part 2 in our article series on stopping sexual harassment at work and the new stop orders. Read Part 1 here: Stopping sexual harassment at work
There has been a lot of discussion recently about sexual harassment and the new stop orders. What is the background and have employers and Government considered societal changes?
Absolutely. These issues really were in the broader social and political discussion for a number of years.
For instance, a national survey conducted by the Australian Human Rights Commission’s (AHRC) between April and June 2018 confirmed sexual harassment in Australian workplaces is widespread and pervasive, with approximately one in three people experiencing sexual harassment at work in the past five years. The survey also revealed:
two in five women (39%) and one in four men (26%) have experienced sexual harassment at work in the past five years;
four out of five people (79%) were sexually harassed by a male harasser;
52% of workers who identify as LGBTI, 53% of Aboriginal or Torres Strait Islander workers and 44% of workers with disability were sexually harassed at work in the last five years;
young people aged between 18 and 29 were more likely than those in other age groups to have experienced workplace sexual harassment in the last five years;
fewer than one in five people (17%) made a formal report or complaint in relation to workplace sexual harassment;
almost one in five people who made a formal report or complaint were labelled as a troublemaker, were ostracised, victimised, ignored by colleagues, or resigned;
in one in five cases, the formal report or complaint brought no consequences for the perpetrator, and where there was some consequence, it was most commonly a verbal warning; and
while more than one in three people have witnessed or heard about the sexual harassment of another person at their workplace in the last five years, only one in three of those individuals took action to prevent or reduce the harm of this harassment.
What followed this?
The AHRC Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report) was introduced.
This was led by Australian Sex Discrimination Commissioner Kate Jenkins and the then Minister for Women, Kelly O’Dwyer.
The purpose of the Inquiry was to address sexual harassment in Australian workplaces, focusing on the nature and pervasiveness of sexual harassment, the drivers of harassment, and the necessary measures to address sexual harassment. The Inquiry was commenced against the backdrop of the #MeToo and #LetHerSpeak movements and recognition of the prevalence of, and immense harm caused by sexual harassment in Australian workplaces.
In delivering the Respect@Work Report on 5 March 2020, Commissioner Jenkins advised that the current legal and regulatory system is no longer fit for purpose and that the new regulatory model is evidence-based, victim focused and framed through a gender and intersectional lens.
Commissioner Jenkins further stated that “sexual harassment is not a women’s issue: it is a societal issue, which every Australian, and every Australian workplace, can contribute to addressing”.
What did the report conclude?
In total, 55 recommendations were made. Essentially, the Respect@Work Report provides for specific amendments to the Fair Work Act 2009 (Cth) (FW Act), the Sex Discrimination Act 1984 (Cth) (SD Act) and the Commonwealth or Harmonised Work Health and Safety Act 2011 (Cth) (WHS Act).
The key legislative amendments to the FW Act and its associated regulations adopted by the Commonwealth Government wholly or in principle include:
the definition of serious misconduct in the Fair Work Regulations 2009 (Cth) is to be amended to include an express reference to sexual harassment;
sexual harassment is to be expressly listed as a valid ground for dismissal for the purposes of an unfair dismissal application; and
the Fair Work Information Statement is to include additional guidance on sexual harassment (subject to agreement by the Fair Work Ombudsman).
The Commonwealth Government has also accepted wholly or in principle the following recommendations regarding the SD Act and related legislation:
sex-based workplace harassment and creating or facilitating an intimidating, hostile, humiliating or offensive environment on the basis of sex is to be expressly prohibited;
any conduct that amounts to victimisation may form the basis of a civil action for unlawful discrimination;
the current exemptions in relation to state public servants are to be removed (coverage is expected to be extended to include judges and members of parliament); and
the time to make an alleged unlawful discrimination claim is extended to 24 months after the alleged incident occurred.
The following recommendations to the WHS Act and its associated instruments have also been approved wholly or in principle:
to amend the Safe Work Australia Model Work Health and Safety Regulation to deal specifically with psychological health; and
to introduce a code of practice on managing psychological risks which covers sexual harassment in the workplace.
Legislative changes have now occurred
On 11 September 2021 the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Act) commenced operation.
The Act gives effect to several legislative amendments recommended in the AHRC Respect@Work Report. The Respect@Work Report provided a suite of recommendations to improve the legal and regulatory framework relating to sexual harassment in Australia.
Relevantly, the Act:
introduces a new object clause in the Sex Discrimination Act 1984 (Cth) (SD Act) which provides that the SD Act aims to achieve, so far as practicable, equality of opportunity between men and women. This amendment is in response to the Respect@Work’s finding that gender inequality is a key driver of workplace sexual harassment;
inserts a new provision in the SD Act to make it expressly clear that it is unlawful to harass a person based on their sex. This new provision prohibits any harassment by reason of the sex of a person (e.g., a woman’s pregnancy), or a characteristic that relates to or is attributed to the sex of a person (e.g., carer’s responsibilities). This amendment addresses the Respect@Work Report’s finding that women often experience harassing conduct based on their sex, but which is not necessarily sexual in nature;
expands coverage of the SD Act to include interns, volunteers, self-employed workers, members of Parliament, their staff, and judges at all levels of government;
clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SD Act;
extends the time period to file a sexual harassment complaint to the AHRC to two years. Previously, the President of the AHRC had discretion to terminate a sexual harassment complaint if it was not lodged within six months of the alleged act(s), omissions, or practices; and
allows the Fair Work Commission (FWC) to make “stop sexual harassment” orders to prevent sexual harassment in the workplace, irrespective of whether the harassing conduct occurred once or on multiple occasions.
The regulations to the Fair Work Act 2009 (Cth) (FW Act) have also been amended to provide expressly that sexual harassment can be a valid reason for dismissal, as one example of ‘serious misconduct’, under the FW Act. This amendment simply clarifies the existing position at law, which has always operated.
What about the stop Orders?
The changes to the FW Act will enable the FWC to make an order to stop sexual harassment in the workplace as part of its existing anti-bullying jurisdiction. In line with the existing regime, orders are limited to stop 'conduct at work'.
There is a criticism or observation that the meaning of ‘at work’ is not defined in the FW Act and is subject to interpretation. Based on existing case law about the meaning of the phrase, it is unclear whether sexual harassment that occurs on social media or at work related events, during work related travel or at work functions will be covered.
Additionally, in order to make the order, the FWC must be satisfied that the harassment has occurred and there is a risk of future harassment at work. This means there are conceivable situations where an employee who has experienced one off conduct may not be eligible for a remedy, even if sexual harassment has occurred and the employee has an ongoing fear of the sexual harassment re-occurring.
Is there an interpretation and implementation issue because of this lack of clarification of what “at work” is?
Potentially. But employers can and should take the same view that has been espoused with bullying and harassment policies and that is to apply a broad approach that does cover social media, IT and out of office scenarios.
Final thoughts
Employers need to be vigilant and specific. A broad investigative and positive duty approach is necessary, and this may mean that policies and practices will need review and updating, particularly bullying and harassment.
Where matters do arise, employers should be investigating the complaints.
For further information please contact:
Jordan Bauer
Senior Associate
T 03 9611 0130
M 0447 710 137
E jbauer@ha.legal
