FWC sexual harassment guide changes the options: lawyer

The Fair Work Commission’s new benchbook on sexual harassment outlines the types of orders available for workplace harassment claims and the process for obtaining them.

If employers were in doubt about their responsibility to workers, the benchbook highlights the need to comply with the positive duty guidance from the Australian Human Rights Commission.

To minimise chances of an adverse finding, employers must take all reasonable steps to prevent harassment to avoid vicarious liability, according to an employment lawyer speaking to HRD Australia.

‘Reasonable steps’ to prevent harassment

The Fair Work Commission benchbook is intended to provide information about what will amount to sexual harassment in the workplace, the types of orders the commission can make and the process it will follow when dealing with sexual harassment applications.

“The benchbook reminds employers that in order to rely on a defence to vicarious liability, they need to show they took all reasonable steps to prevent the conduct giving rise to the sexual harassment,” said Amanda Lyras, partner in workplace relations, employment and safety at Clayton Utz. “The benchmark emphasizes it must be all reasonable steps, not simply some reasonable steps.”

If employers are confused about what “all reasonable steps” means, the benchbook points to guidance on positive duty released by the Australian Human Rights Commission.

“That’s important, because it is essentially highlighting that gold standard guidance – which is relevant in the anti-discrimination space – will also be relevant in the Fair Work jurisdiction when considering whether an employer can rely on that defence by carers liability,” Lyras said.

Positive duty and workplace harassment

Simply having a policy and training on sexual harassment is no longer enough. Employers need to ask themselves:

• are they embedding a safe and respectful culture in the workplace?
• are leaders setting the tone from the top?
• what risk management frameworks are in place?
• what education programs are being run?
• is there a sexual harassment response and prevention plan?

“There are a whole lot of things employers should be thinking about in light of the changes to the Sex Discrimination Act, but this benchbook is a reminder that in order to defend claims that may be brought against employers in this Fair Work jurisdiction, they need to be complying with that positive duty guidance,” she said.

Disputes about sexual harassment

The Fair Work Commission can make two types of application, Lyras said. An application for a stop sexual harassment order is similar to the existing bullying jurisdiction, where the commission can make a range of non-financial orders if it is satisfied there has been sexual harassment in the workplace.

Those orders can only be sought by someone who is still in the workplace. “We’ve seen some early decisions where the commission has not made orders in circumstances where applicants have departed,” she said.

The other jurisdiction is to deal with disputes about sexual harassment, and those sorts of orders can be sought by people who have left the workplace or are still within the workplace.

“It applies to all workers, a broad term that aligns with the existing work health and safety jurisdiction, and encompasses people like employees, contractors, volunteers, apprentices and a broad range of people in the workplace,” Lyras said.

“It applies to conduct on the part of people who might be within the workplace, but also people outside the workplace, such as customers, suppliers, visitors and the like.”

Conciliation or court – options for harassment cases

In the case of an application for a stop sexual harassment order, a conciliation conference may lead to an order seeking to deal with the dispute. “That’s very similar to the conciliation process that currently applies in other types of claim context,” Lyra said, “where the parties will have an opportunity to seek to commercially resolve the matter.”

Failing that, the commission can issue a certificate, so an applicant has 60 days to make an application in court to deal with the dispute.

There is also the ability for the parties to consent to the commission holding an arbitration of the matter, where it will essentially determine the matter and it doesn’t therefore proceed to court.

“In our experience, it’s rare for parties to agree to consent arbitration,” Lyras said. “The usual process is that an applicant will be required to proceed to court if they wish to have the matter pursued.”

Anti-discrimination route in harassment cases

Lyras said developments in anti-discrimination legislation may impact the use of the Fair Work Commission’s sexual harassment jurisdiction.

The Fair Work Commission applies a cost-neutral framework where parties bear their own costs unless one has engaged in an unreasonable act or omission, or the claim has been brought vexatiously.

In the anti-discrimination context, cost orders can be made such that if an applicant succeeds on one or more grounds of their claim, the court must order each respondent to pay the applicant’s costs.

“The only exception to that will be if an applicant’s unreasonable act caused costs to be incurred, in which case only those costs are excluded,” she said.

Conversely, if the respondent succeeds in the anti-discrimination space, the applicant must not be ordered to pay their costs unless the applicant acted vexatiously or unreasonably, and then costs are limited to those flowing from that act.

“That means the scales are essentially tipped significantly in the applicant’s favour, should they bring a claim in the anti-discrimination jurisdiction in terms of costs that may be awarded to them,” she said.

“That will create a number of strategic and legal advantages for applicants in that jurisdiction that are not available in the Fair Work Commission jurisdiction.”

Where the Fair Work Commission jurisdiction is seen as accessible, informal and relatively speedy for applicants having their matters heard, the anti-discrimination jurisdiction can be slower.

“These changes, in the anti-discrimination context, may see fewer [sexual harassment] claims being brought in under the Fair Work jurisdiction,” Lyras said. “That’s an interesting development.”

Fair Work Commission benchbook

The benchbook provides clear and comprehensive guidance on the types of claims that can be brought and the process that will eventuate.

“Applicants, where properly advised, will have a more attractive cost framework to work within the anti-discrimination jurisdiction,” Lyras said. “Having said that, where applicants are not advised by lawyers, or where they may nonetheless want to see a relatively expedient resolution of their matter, they may nonetheless still continue to bring their claim in the Fair Work jurisdiction – because, typically, they will have access to a conciliation conference relatively soon after they have filed their application.”

The Fair Work jurisdiction allows two or more people to bring a claim together. It also allows an industrial association, like a union, to bring a claim on behalf of two or more employees.

“Where there may be issues with a toxic workplace or a number of complainants have come forward about alleged sexual harassment, we may again see this jurisdiction being enlivened where complainants come together to bring their claims collectively,” Lyras said.