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From 11 November 2021, the Fair Work Commission can receive applications for orders to stop sexual harassment at work.

“Workplace harassment harms us all. Harassment can lead to higher absenteeism, lower morale, reduced productivity and significant legal risks. It’s important that business owners and managers understand their responsibilities and take action to prevent harassment in the workplace.” says Sean Wilson, CEO at BetterHR, a leading Australian HR company.

Fair Work Commission Powers Expanded

The Fair Work Commission’s stop bullying jurisdiction under the Fair Work Act 2009 has been expanded by the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 so that the Commission can now receive applications for orders to stop bullying, to stop sexual harassment, or to stop both bullying and sexual harassment at work.

Most workers can apply to stop sexual harassment at work.

Applicants can now use a single form to apply for orders to stop bullying, to stop sexual harassment or to stop bullying and sexual harassment.

What is sexual harassment at work?

Sexual harassment is unwelcome conduct of a sexual nature in relation to a person. 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

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.

Sexual harassment and discrimination

Some types of discrimination are unlawful under federal, state and territory laws dealing with human rights, anti-discrimination and equal opportunity.

Sexual harassment and general protections

A person (such as an employer), must not take any ‘adverse action’ against another person (such as an employee), because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right.

Adverse actions that can be taken against an employee or potential employee might include:

  • dismissing them
  • not giving them their legal entitlements
  • changing their job to their disadvantage
  • treating them differently than others
  • not hiring them
  • offering them different (and unfair) terms and conditions, compared to other employees.

Sexual harassment and work health and safety

Under model work health and safety laws, businesses and organisations must provide a safe workplace by making sure that people in their workplace are not exposed to health and safety risks. This includes risks of sexual harassment. Sexual harassment can arise between workers and other people at the workplace, including customers and clients.

Need help?

Contact the HR experts at BetterHR. We’re here to help!

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