Preventing sexual harassment in the workplace: Updates and developments for 2022

Addressing sexual harassment in the workplace remains a key focus for employers in 2022. Now is the time for organisations to check they are taking all reasonable steps to prevent sexual harassment, following the recent introduction of orders by the Fair Work Commission (FWC) to stop sexual harassment and the first decision in respect of such orders. In addition, the coverage of the Sex Discrimination Act 1984 (Cth) (the SD Act) has been extended to organisations not previously covered by the SD Act, including state government employers and employees.

In this article we explore:

• the steps employers should be taking to prevent sexual harassment
• the orders recently introduced to stop the sexual harassment of workers
• the first published decision where a worker applied for an order to stop sexual harassment, and its implications
• the extension of coverage of the Sex Discrimination Act

Steps to prevent and respond to sexual harassment

Employers can be legally responsible (otherwise defined as vicariously liable) for acts of sexual harassment that occur in a workplace or in connection with an individual's employment.

In defending a sexual harassment claim, an employer will need to demonstrate that they have taken all "reasonable steps" to prevent discrimination or harassment from occurring and that they have responded appropriately to incidents of harassment and discrimination.

To minimise risk of liability for sexual harassment, employers should take the following steps.

1.	Implement a strong policy on discrimination and harassment and communicate it widely throughout the organisation.
2.	Provide training for employees on the requirements of the discrimination and harassment policy and what constitutes sexual harassment and discrimination.
3.	Ensure there is clear and visible support from senior management in respect of preventing sexual harassment and discrimination.
4.	Ensure the workplace has a clear procedure for reporting and investigating complaints of harassment and discrimination.
5.	Promptly investigate complaints of sexual harassment and discrimination and take appropriate action if the conduct is proven.
6.	Consider introducing harassment contact officers for employees to contact to discuss any concerns or complaints.
7.	Continue to monitor and review the approach to sexual harassment and discrimination to ensure policies and procedures are in line with best practice.

Orders to stop sexual harassment are now in effect

New legislation has been introduced, effective from 11 November 2021, allowing workers to apply to the Fair Work Commission for orders to stop sexual harassment.¹

Sexual harassment that occurred prior to 11 November 2021 can be considered by the FWC when making an order to stop sexual harassment. However, the FWC can only make an order in respect of historical harassment if it is satisfied that there is a risk the worker will continue to be sexually harassed, i.e. there is a risk of future harm.

What amounts to sexual harassment to obtain a stop order?

A person sexually harasses another person if:

• they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
• they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;
• in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The intention (even the best intentions) of the alleged perpetrator is not relevant to whether or not sexual harassment has occurred.

Who can apply to the FWC to make an order to stop sexual harassment?

An individual may apply to the FWC for an order to stop sexual harassment at their workplace in circumstances where the person:

1. falls within the definition of "worker" pursuant to the Work Health and Safety Act 2011 (Cth). This is a broad definition and covers employees, contractors, subcontractors, labour hire workers, volunteers and many more;
2. is not a member of the Australian Defence Force; and
3. has a reasonable belief that they are experiencing sexual harassment while working at a constitutionally-covered business (this means some state government employees will not be able to apply for these orders, but those in state organisations covered by the Act, such as Sydney Trains, will be able to apply).

In what circumstances will an order be made by the FWC to stop sexual harassment?

Section 789FF of the Fair Work Act 2009 (Cth) provides that the FWC may make an order to stop sexual harassment if:

1. the worker has made an application under section 789FC; and
2. the FWC is satisfied that the worker has been sexually harassed at work, and there is a risk that the worker will continue to be sexually harassed at work.

The FWC must consider additional factors before making an order of this kind. These include the final or interim outcomes of an investigation into the matter; grievance procedures and/or policies followed by an organisation, and any final or interim outcome arising out of any procedure that is available for the worker to resolve grievances or disputes; and any other matters the FWC considers relevant.

What orders can be made by the FWC?

A variety of orders can be made in response to a stop sexual harassment application. These may include:

• an order for one or more individuals to stop the specified behaviour
• regular monitoring of behaviours by an employer
• changes in working arrangements
• provision of additional information, support and training to workers
• a safety risk assessment for the workplace and a review of the employer's workplace policies.

Orders made will depend on the mitigating factors and circumstances on a case-by-case basis.

Failure to comply with a stop sexual harassment order will constitute a breach of the civil penalty provisions under the Act and may result in a maximum penalty of 60 penalty units, which equates to $13,320.

The FWC's first decision in an application to stop sexual harassment

THDL [2021] FWC 6692

On 16 November 2021, THDL (the Applicant) filed an application in the FWC for an order to stop sexual harassment and bullying pursuant to section 789FC of the Act. The application sought to cover two individuals employed by a neighbouring business working in the same warehouse complex as the Applicant.

All three parties objected to the application on the grounds that the Applicant did not fall within the definition of "worker"; the Applicant was not at work when the alleged complaints of sexual harassment and bullying occurred; and the Applicant had been reported to police and had an intervention order against them.

At a directions hearing on 23 December 2021, it was established that the Applicant's business had moved out of the warehouse complex and subsequently, the parties would not cross paths while at work.

The FWC decided, pursuant to section 587 of the Act, to dismiss the application as it had no reasonable prospects of success. A key factor in this conclusion was that the risk of future sexual harassment and/or bullying in the workplace had been significantly reduced ─ the parties were no longer in physical connection as the applicant had moved out of the shared warehouse, and there was an intervention order in effect prohibiting them from being within 200 metres of each other.

This case highlights that there needs to be a risk of future sexual harassment or bullying before an order under section 789FF of the Act will be made. This means if one of the parties involved is no longer employed or present in the workplace, an applicant will likely face difficulties in obtaining an order to stop sexual harassment as the parties are no longer working together.

While the application was unsuccessful in this case, given the prevalence of sexual harassment reflected in recent surveys conducted by the Australian Human Rights Commission², we anticipate that applications to stop sexual harassment will become more prevalent in 2022.

Greater alignment between the Sex Discrimination Act and Fair Work Act

The Respect at Work Amendment Act also amended the Sex Discrimination Act to:

• expressly prohibit sexual harassment
• expressly prohibit the creation or facilitation of an environment that is intimidating, hostile or humiliating to individuals on the basis of sex
• extend the coverage of the SD Act to other types of paid and unpaid workers ─ including volunteers, apprentices, interns, contractors and self-employed workers ─ by adopting the definition of worker in the Work Health and Safety Act 2011 (Cth); and
• remove the existing exemption of state public servants (covered in more detail below).

Extension of coverage of Sex Discrimination Act to state government

The Respect at Work Amendment Act amended the SD Act to remove the existing exemption of state public servants, meaning that the SD Act now covers state government employees.

The inclusion of state government employees in the coverage of the SD Act means that state government employers must continue to ensure they have taken preventative measures to protect workers and mitigate the risk of sexual harassment at work (and outside of work hours) to avoid vicarious liability for the actions of any employee engaging in sexual harassment of others under the SD Act.

Key takeaways for employers

• The FWC can make orders to stop sexual harassment where there is a risk that sexual harassment will continue.
• State public servants are now covered by the SD Act but will not be able to apply for orders stopping sexual harassment unless they fall within the FWC's jurisdiction.
• Sexual harassment can be conduct that amounts to a valid reason for dismissal in circumstances where an unfair dismissal application has been made by an employee.
• As a larger group of workers is now covered by the SD Act, there is greater risk of vicarious liability for employers. It is therefore imperative that employers promptly take "all reasonable steps" to mitigate the risk of sexual harassment in the workplace.
• Employers should review and update existing company policies, training programs and reporting processes to provide clarity on the employer's expectations of employee behaviour in the workplace.

For assistance with training your workers or updating your existing policies on harassment and discrimination, please contact the experienced Workplace Relations & Safety team at Lander & Rogers.

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¹ Orders to stop sexual harassment were introduced in the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Amendment Act), which made a number of amendments to the Fair Work Act 2009 (Cth) (the Act).
² AHRC (2018) Fourth national survey on sexual harassment in Australian workplaces.