Outcomes from the Fair Work Commission’s first sexual harassment dispute matter

Background

An outcome has been reached in one of the Fair Work Commission’s (FWC) first sexual harassment dispute cases, which involves a new method to deal with sexual harassment disputes within the FWC introduced earlier this year as part of the ‘Secure Jobs Better Pay’ amendments to the Fair Work Act 2009 (Cth) (Act).

Previously the only remedy available for sexual harassment through the FWC was in the form of stop sexual harassment orders which were intended to prevent future harassment. Applications to the FWC to ‘otherwise’ deal with disputes are intended to remedy past harm that has been caused by the harassment and can be made in addition to, or alternatively to a stop sexual harassment order.  

Facts

In June 2023, a female identified as Ms AB for the purpose of confidentiality, filed an application to deal with a sexual harassment dispute under the new section 527F of the Act. She was represented by her mother due to being under 18 years of age. The sexual harassment was alleged against three respondents who were colleagues of Ms AB. They were identified as Ms UV, Mr WX and Ms YZ, each in casual roles and also under the age of 18.

The allegations of sexual harassment were in relation to an inappropriate video of Ms AB that was circulated by one or more of Ms UV, Mr WX and Ms YZ.

Two conferences were held between the parties, their parents, legal representatives and Commissioner Hunt of the FWC. Following the second conference, consent orders were agreed to in relation to the alleged conduct.

Outcome

The consent orders for Ms YZ, the third respondent were as follows:

• acknowledge in writing, within seven days, Ms AB’s distressful experience, without admissions of liability;

• delete any copy of the video of Ms AB should it be sent to her at any time;

• refrain from discussing the video of Ms AB in the future, or participate in any discussions about the video of Ms AB; and

• undertake not to make written or oral statements about Ms AB that are abusive, offensive or disparaging.

The consent orders for Ms UV were similar:

• undertake not to discuss the video of Ms AB in the future, or participate in any discussion about the video of Ms AB, other than to her legal advisor or medical practitioner(s) or any other person as required by law; and

• refrain from making any written or oral statements about Ms AB that are abusive, offensive or disparaging.

The consent against Ms YZ and Ms UV also noted that to view or circulate the video of Ms AB may constitute a criminal act given the age of Ms AB at the time the video was recorded.

In return Ms AB was required to:

• refrain from making written or oral statements about Ms YZ that are abusive, offensive or disparaging;

• undertake not to discuss Ms YZ’s alleged involvement in the circumstances giving rise to the application or proceedings in the matter; and

• commit to not discussing the terms of the agreement the parties have reached.

Key Takeaways

This case demonstrates how the FWC may deal with sexual harassment disputes. The process is similar to how general protections applications are dealt with; conferences will be organised between the parties at first instance with the aim to come to an agreement and avoid the need for further arbitration or court hearings. Privacy and confidentiality will also be maintained throughout the process.

Given there are now more avenues and methods for sexual harassment claims to be made and resolved, employers should continue their approach of preventative actions. This should involve having in place detailed policies and procedures setting out expectations and obligations on the workplace for preventing this type of conduct and what happens if there are allegations of sexual harassment, particularly through the avenue of investigation. Employers should also ensure that there is adequate communication and training in this space, and that behaviour is appropriately monitored to ensure a positive culture in the workplace.

If you need advice or assistance regarding sexual harassment, please contact:

Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal

Sonia McCabe
Senior Associate
T 03 5226 8558
E smccabe@ha.legal

Matthew Synoradzki
Lawyer
T 03 5226 8542
E msynoradzki@ha.legal