The Fair Work Commission will be able to make a “stop sexual harassment order” after a single incident under proposed legislation introduced today to implement some of the recommendations from Sex Discrimination Commissioner Kate Jenkins’ Respect@Work report.
Industrial Relations Minister Michaela Cash said in a statement today that the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill gives effect to the Government’s commitments in relation to Jenkins recommendations, which includes the anti-harassment orders.
The legislation makes changes to the Fair Work Commission’s anti-bullying jurisdiction, allowing it make an order to stop sexual harassment in the workplace.
The Bill’s explanatory memorandum says the provisions allowing the Fair Work Commission to make anti-sexual-harassment orders gives workers who have suffered workplace sexual harassment access to a fast, low cost, informal mechanism to deal with complaints.
“Just as is the case with the existing jurisdiction, orders are intended to prevent the risk of future harm.
“The Fair Work Commission must be satisfied that the harassment has occurred to make an order, and orders would not be available in cases where there is no risk of harassment occurring again, for example when the person who harassed the worker is no longer employed at the workplace.”
The memorandum says that s789FD of the Fair Work Act outlines when a worker is “bullied at work” and this will be amended to include sexual harassment, which will have the same definition as s28A of the Sex Discrimination Act.
It says that sexual harassment that constitutes bullying behaviour is already covered by the existing Part 6-4B jurisdiction, but there will be modifications to how this part applies to sexual harassment.
“In particular, the jurisdiction can be enlivened on one occasion or instance of sexual harassment; this is appropriate as sexual harassment is not always repeated or continuous.”
The legislation does not require the worker to “establish a risk to health and safety when an application to the FWC concerning sexual harassment is made, as sexual harassment is a known and accepted work health and safety risk.”
Commission given broad powers to counter harassment
The memorandum says that orders can include any terms the Fair Work Commission considers appropriate to prevent the worker from being bullied at work, sexually harassed at work, or both.
“The existing jurisprudence, which will continue to be relevant in relation to the modified jurisdiction, provides that orders can apply to a broad range of persons, most obviously co-workers but also employers and visitors to the workplace where appropriate.
“Sexual harassment and bullying are not necessarily mutually exclusive behaviours, and can occur together.
“By allowing the Fair Work Commission to consider both types of behaviour, the FWC will be able to make more effective orders to deal with the behaviours.”
The primary aim of such orders is to “protect workers from future harm, and orders are not made with the intention of punishing bad behaviour (while they may have a deterrent effect)”.
“Orders cannot include a requirement to pay a pecuniary amount.”
The Bill also amends the Fair Work Act to enable an employee to take paid compassionate leave if they, or their spouse or de facto partner, has a miscarriage.
