If you are experiencing (or have experienced) sexual harassment in the workplace, you will be all too familiar with the stress, anxiety, heartache and feelings of hopelessness that sexual harassment causes.
Perhaps you tried your best to grin and bear it for a while, or even made a complaint to your manager or HR in the hopes they would make the sexual harassment stop.
Unfortunately, however, sexual harassment seldom just “stops” by its own accord. In fact, as many have experienced, sometimes speaking up seems to only make matters worse. Maybe your boss or HR doesn’t believe you. Maybe you went through an internal complaints process only to be told that because you didn’t have cold hard proof, nothing could be done about it. Or maybe you did get some initial help and recognition from your boss, only for things to quickly spiral out of control again later. As a result, you might feel completely stuck with no clue where else you can turn.
In 2020, the Respect@Work: Sexual Harassment National Inquiry Report was released highlighting the urgent need for change, with 1 in 3 people having experienced sexual harassment at work in the past five years. These are some alarming stats!
In response to the report, the Fair Work Act 2009 was amended to provide a mechanism for affected workers to seek recourse through the Fair Work Commission.
From 11 November 2021, a worker who has been sexually harassed in the workplace is now able to apply to the Fair Work Commission for an order to stop the sexual harassment.
While it is new terrain, with the introduction of orders to stop sexual harassment into the Fair Work Act 2009 (Cth), there is new hope for employees who have or are currently suffering from the effects of sexual harassment in the workplace.
So, before we look at how these new orders work, let’s revisit what sexual harassment means.
What is sexual harassment?
From this link at the Government Human rights site, we see this information about what sexual harassment is:
Sexual harassment is unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated. It occurs in circumstances where a reasonable person would anticipate the possibility of the person who is harassed being offended, humiliated or intimidated. Conduct of a sexual nature includes making a statement of a sexual nature to, or in front of, a person. The statement can be spoken or in writing.
What does sexual harassment in the workplace look like?
Workplace sexual harassment is when sexual harassment happens at work, in a constitutionally-covered business. It can be a one-off incident, or it can happen more than once, involving conduct by one or more people.
Sexual harassment can include conduct such as:
- inappropriate staring, leering or loitering
- unwelcome touching
- suggestive comments or jokes, insults or taunts based on sex, or sexual gestures
- using suggestive or sexualised nicknames for a person
- persistent unwanted invitations to go out on dates
- intrusive questions or comments about a person’s private life or body
- unnecessary familiarity, such as deliberately brushing up against a person
- displaying material of a sexual nature in the workplace
- communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages.
Of course, this is not an exhaustive list. There are many other types of behaviours that may also constitute sexual harassment.
What is a stop sexual harassment order?
A stop sexual harassment order aims to prevent a worker from being sexually harassed at work by either an individual or a group of individuals.
The order itself will require a person or persons to stop a particular behaviour or set of behaviours. Being a Court order, there are sanctions for failure to comply.
Am I eligible?
Workers can apply for a stop sexual harassment order after the first incidence of sexual harassment.
You can apply to the Fair Work Commission for a stop sexual harassment order if you are a worker working in a constitutionally covered business and still connected to the workplace where the conduct occurred.
A worker can be
- an employee
- a contractor or subcontractor
- a small business owner who works in the business
- an employee of a contractor or subcontractor
- an employee of a labour hire agency
- an outworker
- an apprentice or trainee
- a student on work experience
- a volunteer.
While it can get a bit technical, a “constitutionally covered business” means that your employer has to be a company or a government body. So if you are employed in the not-for-profit sector or by a sole trader or partnership you should get some specific advice on whether you are eligible before proceeding.
And finally, you still need to have some connection with the workplace – usually this means continued employment. This is for practical reasons – there is no point getting an order to stop a behaviour if you are no longer at risk of that behaviour occurring because you have left the workplace.
It is important to check your eligibility before you apply to the Commission.
How do I apply?
To apply for an order to stop sexual harassment you need to use a Form F72.
If you need help completing the form you can get your employment lawyer to complete it for you. Given the nature and importance of these applications, we do recommend getting advice and legal assistance.
As at February 2022, the fee to file your application is $74.90.
What happens after I lodge an application?
Once you have submitted an application and paid the filing fee, the Fair Work Commission will advise you of next steps. They will also provide a copy of your application to each person named in the application as engaging in sexual harassment as well as your employer.
The Commission must start to deal with the application within 14 days.
The Commission will determine the best way of managing the application, either by way of a conciliation conference or a hearing. The Commission may also take other steps, such as requiring people to provide copies of documents or other information.
If the application proceeds to a hearing, the member allocated to the matter will then hear the evidence in the case and make a decision based on that evidence.
There are two main questions to determine based on the evidence:
- Has sexual harassment occurred?
- Is there a risk that the harassment will continue?
If the application is determined in your favour, the Commission will make suitable orders to stop the sexual harassment.
What orders can the Commission make?
If the Commission is satisfied that you have been sexually harassed at work and there is a risk that you will continue to be sexually harassed at work, then it can make orders deemed appropriate to ensure the sexual harassment stops.
This could include, for example:
- requiring the employer to undertake certain steps to protect the worker, such as changing reporting lines, conducting workplace training, updating policies and procedures, or requiring the business to regularly monitor certain staff members behaviour; and
- requiring a person to stop the sexual harassment and apologise.
It is important to be aware that the Commission cannot order financial compensation in applications of this kind. You should discuss with your employment lawyer about alternative options and remedies that may be available to you if financial compensation is something you would like to try and achieve.
So where to from here?
Sexual harassment is unlawful and is not okay.
With the introduction of the stop sexual harassment orders in the Fair Work Commission, you have more legal options available to you then before.
At Rubix Legal our passion is to help you find your voice in the workplace. We frequently assist employees and workers who have been subjected to sexual harassment in the workplace. If you would like to find out more about how we can help, you can book a complimentary 20 minute consultation with one of our employment lawyers.
Our lawyers will be able to answer any questions you may have about sexual harassment in the workplace or the stop the sexual harassment orders.