FWC's new powers put to the test with sexual harassment case

These new powers supplement the Commission's existing powers to deal with workplace bullying

BY Kyle Scott and Kate Thomson 31 Jan 2022

by Kyle Scott, director and Kate Thomson, senior associate, Australian Business Lawyers & Advisors

Late last year, the Fair Work Commission (FWC) was given new powers to deal with sexual harassment complaints, including the ability to issue orders against businesses and individuals preventing them from engaging in certain conduct. These new powers supplement the Commission’s existing powers to deal with workplace bullying and is one of a number of reforms that were implemented as part of the Federal Government’s response to the Sex Discrimination Commissioner’s Respect@Work Report.

What are the new powers?

The reforms provide workers with an easy, informal, and low-cost pathway to escalate complaints about sexual harassment to an independent tribunal.

The Commission can now issue orders preventing workers from being sexually harassed where the tribunal is satisfied:

the worker has been sexually harassed (or bullied, or both) by an individual or group of employees; and
there is risk the worker will continue to be sexually harassed (and/or bullied) into the future.

Like the anti-bullying regime, the scope of the provisions is very broad and allows employees, contractors, volunteers and other ‘workers’ to bring complaints. The complaints don’t even need to be made against other employees of the business - the conduct simply has to have occurred ‘at work’.

The first decision

In the first decision to be published by the FWC under its sexual harassment jurisdiction, an employee alleged they had been sexually harassed by two men who worked in a neighbouring business operating out of the same warehouse complex (THDL [2021] FWC 6692).

The worker’s complaint was ultimately dismissed due to the fact that one of the businesses had since moved out of the shared warehouse premises and the parties would no longer be in the same location at work (and therefore there was no risk of future sexual harassment, which is a necessary element for the Commission to issue a ‘stop’ order).

Why these new sexual harassment provisions are important

Some of the key learnings that every employer should be aware of are:

The legal test is whether the complainant was sexually harassed ‘at work’ and is exposed to a risk of further sexual harassment. This means that complaints can be made against a wide range of people, including colleagues but also visitors to the worksite and potentially customers.
People are often surprised by how low the threshold is for conduct to meet the statutory definition of ‘sexual harassment’ (sexual harassment is defined as unwelcome conduct of a sexual nature whiere a reasonable person would have anticipated the possibility that the other person would have felt offended, humilated or intimidated).
There are various forms of conduct which can constitute sexual harassment, including inappropriate jokes, sexual innuendo, casual sexism, sharing explicit messages, pictures or social media posts.
The intention of the person who engaged in the conduct is not a relevant factor in determining whether the conduct amounted to sexual harassment.
Unlike workplace bullying which requires repeated unreasonable behaviour, sexual harassment can involve single isolated events.
In most cases, claimants will seek to hold the employer responsible for the acts of their employees (under the principle of vicarious liability), so the legal/financial risk is borne by the employer in most cases rather than the individual.

What should employers take away from this?

Although the FWC does not have the power to grant compensation orders to victims of sexual harassment, responding to these types of claims can still be time consuming and potentially embarrassing (given the public nature of decisions). Businesses should be proactive and aim to resolve grievances before they escalate to formal tribunal proceedings.

There are some practical steps that businesses can take to avoid being hauled before the FWC. These include:

Provide regular workplace training on bullying, harassment and discrimination to ensure employees are aware of acceptable workplace standards.
Have an up-to-date workplace policy in place which set outs the standards of behaviour that are expected, makes it clear that sexual harassment is unacceptable, and details the relevant procedures for employees to raise complaints.
Ensure the policy is accessible and effectively communicated to all employees.
Build a culture where employees feel comfortable in reporting grievances, including having a clear pathway for employees to report issues, or establishing a Whistleblower Hotline.
Offering support services to employees who raise complaints.

This is an area of workplace legislation that will continue to challenge employers. To hear more about Sexual Harassment in the Workplace join us on Tuesday 8 March at 12-1pm for a free one-hour discussion. Kyle Scott and Kate Thomson will discuss significant cases and provide guidance on how you can minimise risk in your workplace. Secure your free spot now here or contact [email protected].