In September 2021, the Australian Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 containing the first part of legislative reforms recommended in the Respect@Work report.
As of 11 November the Fair Work Commission now has the power to make stop sexual harassment orders.
The legislation enacted several changes based on recommendations from the Respect@Work report prepared by the Australian Human Rights Commission following its inquiry into sexual harassment in Australian workplaces.
The Respect at Work amendments expand the existing Fair Work Act provisions dealing with orders to stop bullying at work to include Fair Work Commission orders to stop sexual harassment. An eligible worker who believes they have been sexually harassed at work can apply to the FWC for an order to stop the sexual harassment.
Unlike for stop bullying orders, where repeat behaviour must be demonstrated, stop sexual harassment orders can be made following a single occurrence. It can be a one-off incident, or it can happen more than once, involving conduct by one or more people. You can also apply for both stop sexual harassment orders and stop bullying orders concurrently.
Website material
Information on the Fair Work Commission’s role in dealing with applications to stop sexual harassment at work is now available on the Commission’s website.
The website provides guidance on what sexual harassment at work is, who can apply, the process, how to respond to an application and information about discrimination, general protections and work health and safety.
Forms
The Commission’s F72, F73 and F74 forms have been revised and updated so they can also be used to deal with applications to stop sexual harassment at work. Applicants will use a single form to apply for orders to stop bullying, to stop sexual harassment or to stop bullying and sexual harassment.
Benchbook
A new Orders to Stop Sexual Harassment Benchbook has been published.
Amended Rules
The Fair Work Commission Rules 2013 have been amended.
The introduction of stop sexual harassment orders is an important part of the wider response to the Respect@Work report, which found sexual harassment is a widespread issue across Australian society, including in the building and construction industry.
Research from the Respect@Work report found:
- 51% of women in the building and construction industry have experienced sexual harassment at work
- 12% of men in the building and construction industry have experienced sexual harassment at work
- $171.8 million in estimated lost productivity costs in the building and construction industry due to workplace sexual harassment
Building and construction is the most male dominated industry in Australia. While a growing number of women are entering the sector, females currently make up just 12% of the workforce. It is this imbalance of genders that contributes to the risk of sexual harassment.
Changes to the Sex Discrimination Act and Fair Work Act
The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 contains the first part of legislative reforms recommended in the Respect@Work report.
This legislation implements recommendations 16, 20-22 and 29-30 of the Respect@Work report by:
- creating a new object clause to make it clear that the Sex Discrimination Act aims to achieve, so far as practicable, equality of opportunity between men and women
- clarifying that harassing a person on the basis of sex is prohibited under the Sex Discrimination Act
- protecting more workers from sexual harassment, particularly vulnerable workers, by broadening the scope of people covered by the Sex Discrimination Act and clarifying that members of parliament and judges (and their staff) are covered by the Sex Discrimination Act
- clarifying that a complaint of victimisation can be considered as either a civil or criminal matter
- extending the timeframe for which a complaint can be made to the Australian Human Rights Commission to reduce procedural barriers for complainants under the Sex Discrimination Act
- clarifying that the FWC may make orders to stop sexual harassment in the workplace
- clarifying that sexual harassment can be a valid reason for dismissal under the Fair Work Act 2009.
The legislation also amends the Fair Work Act to enable an employee to take compassionate leave if they, their spouse, or de facto partner, has a miscarriage.
More information and resources are available about how to prevent and respond to reports of sexual harassment in the workplace from: