Australian workers can now apply to the Fair Work Commission for an order to stop sexual harassment in their workplace, under changes to law that came into effect last month. Here is what businesses need to know.
In the landmark Respect@Work report, Sex Discrimination Commissioner Kate Jenkins recommended the federal government expand applications to stop bullying in the workplace to also include sexual harassment.
The recommendation, which was legislated in September to commence after two months, allows the Fair Work Commission to intervene if it finds there’s a risk for an employee who was sexually harassed at work to continue being sexually harassed.
Fay Calderone, partner and workplace relations lawyer at Hall & Wilcox, says the reforms have created a more pressing need for businesses to establish robust anti-sexual harassment policies.
“It’s really important that employers have policies and procedures in place in relation to anti-discrimination and sexual harassment in the workplace,” Calderone told SmartCompany.
Here’s how applications for an order to stop sexual harassment will work.
Who can apply?
Workers can apply to the Fair Work Commission to stop sexual harassment at work if they are employed by a so-called ‘constitutionally-covered’ business. These businesses include most Australian workplaces, except for sole traders, partnerships, some state government or local government bodies, and organisations that aren’t engaged in trade or financial activity.
The stop order defines a worker as an employee, contractor, subcontractor, outworker, apprentice, intern or volunteer.
To be eligible to apply, these workers must continue to be connected to the workplace where the sexual harassment took place and could occur again.
How does someone apply for the stop order?
Workers lodge an online application to the Commission for a fee of $74.90. If a worker is experiencing serious financial hardship, they can apply for a fee waiver.
In the application, workers must include their employers details, a contact person at their work and the details of the person named as sexually harassing them. They must also describe what took place and why there’s a risk that they continue to face harassment. Finally, the worker needs to explain whether they reported the incident to their workplace or the police, and how they want the Commission to respond.
When will the Commission intervene?
The Commission will make an order to stop sexual harassment if it finds the worker has been sexually harassed at work by an individual or a group of individuals, and that there’s a risk the worker will continue to be sexually harassed.
What can the Commission do?
Orders can include a range of measures that the Commission considers is appropriate to stop the worker from being sexually harassed.
Calderone says these interventions depend on the situation but can include restrictions on communications and in-person meetings.
“That may include orders such as an employee not being in the same room alone with a particular individual,” Calderone says.
“It can include orders like an individual not being emailed after hours or not being emailed directly without a copy to someone such as a supervisor or independent HR person, for example.”
How is the business notified?
If the Commission makes an order for sexual harassment to stop, it will send the employer or principal the worker’s application and an instruction to respond within seven days.
Employers must complete a form, which the Commission has advised can be filled out with the assistance of a lawyer, industry body or chamber of commerce.
What should businesses be aware of?
When considering making a stop order, the Commission will take into account the steps and processes the employer has already taken in response to incident of sexual harassment. This includes whether the business has an independent, confidential and timely procedure that it’s following.
“That could persuade the Commission that escalation to make orders to stop the harassment is premature,” Calderone says.
“Whereas if they don’t have those procedures in place, by the time the matter gets before the court, the Commission may form a view that it’s too little, too late and it has to intervene,” she adds.
When the Commission has intervened in bullying cases, Calderone says stop orders have tended to be “fairly draconian” and companies and individuals face civil penalties if they breach the orders.
“The idea is to avoid escalation to the Commission and to avoid the Commission making the orders by having the proper processes in place,” she says.
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