New provisions for the prevention of sexual harassment and bullying in the workplace have commenced.
Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop sexual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.
There is no time limit for making an application for an order to stop bullying or sexual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or sexually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.
‘Sexually harass’, for these purposes, has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth).
Examples of sexual harassment include:
- inappropriate behaviour including staring, leering, loitering or unwelcome touching;
- suggestive comments, jokes or gestures based on sex or a person’s private life or body;
- communicating sexually explicit material in person or electronically.
The objectionable conduct must occur at work, which is not defined but is tied to work activities wherever they occur and is not limited to the confines of a physical workplace. It includes entering, moving about and leaving a workplace.
The application needs to be lodged with the Fair Work Commission using the prescribed form: Application for an order to stop bullying or sexual harassment (or both).
The employer needs to respond within 7 days of being served using the prescribed form: Response from an employer or principal to an application for an order to stop bullying or sexual harassment (or both).
The alleged perpetrator will receive a copy of the application and be invited to respond within 7 days using the prescribed form: Response from a person named as having engaged in bullying or sexual harassment (or both).
All the prescribed forms are available in the Workplace bullying and sexual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.