From 6 March 2023 sexual harassment in connection with work is prohibited by the Fair Work Act 2009. Aggrieved persons have rights to apply to the Fair Work Commission and, with some limitations, the Federal Courts.
Part 3-5A of the Fair Work Act 2009 prohibits sexual harassment of workers, persons seeking to become workers, and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.
An employer may be vicariously liable for sexual harassment of their employee or agent unless the employer can show that they took all reasonable steps to prevent it.
An aggrieved person who alleges they have been sexually harassed in connection with work, or an industrial association entitled to represent the industrial interests of an aggrieved person, may apply to either:
- the Fair Work Commission under s 527J of the Act to either make a Stop Sexual Harassment Order (SSHO) , or to otherwise deal with the dispute, or both;
- a Federal Court for orders for contravention of civil remedy provisions, under Division 2 of Part 4-1.
However, a court application can only be made if the parties have first attempted to resolve the matter through the Fair Work Commission, and the Commission has issued a certificate to that effect, unless the application seeks an interim injunction.
These provisions of the Act are in addition to, and do not exclude or limit, any rights a person may have under any state or territory law in connection with sexual harassment.
If the application is not solely for a SSHO, the Commission must deal with the dispute according to its powers under s 595 (2), other than by arbitration – namely via mediation or conciliation, or making a recommendation or expressing an opinion.
Stop Sexual Harassment Order
Where an application seeks a SSHO, if the Commission is satisfied that the aggrieved person has been sexually harassed and there is a risk of the harassment continuing, the Commission may make any orders it considers appropriate to prevent the harassment, except for a pecuniary order: s 527J(i).
In considering the terms of its orders, the Commission must take into account the outcomes of any investigation into the matter, any other procedures available to the aggrieved person and the outcomes if any, and anything else the Commission considers relevant.
Time limits
Any application to the Fair Work Commission under Part 3-5A of the Fair Work Act 2009 may be dismissed if it is made more than 24 months after the alleged contravention, or after the last of a series of contraventions is alleged to have occurred: s 527G of the Act, or such longer time as the Commission allows upon application.
A sexual harassment court application must be brought within 60 days of the s 527R(3)(a) certificate being issued by the Fair Work Commission, or such longer time as the court may allow upon application.
These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The By Lawyers Employment Law guide has been updated accordingly.