On 16 March 2022, the Industrial Relations Society of Victoria held an event with Fair Work Commissioner McKinnon to learn more about the Fair Work Commission’s (Commission) new sexual harassment jurisdiction. Commissioner McKinnon is the Deputy National Practice Lead for the Commission’s bullying and sexual harassment jurisdiction. This event was timely in light of the heighted awareness of the prevalence of sexual harassment and sex discrimination in Australian workplaces and this new means to tackle the scourge. In March 2020, the Australian Human Rights Commission released the Respect@Work report, which included 55 recommendations. Recommendation 29 of the report was adopted and resulted in the introduction of a ‘stop sexual harassment order’ into the Fair Work Act 2009 (FW Act), which is equivalent to the ‘stop bullying order’.
Changes to expect in the Commission’s processes
Commissioner McKinnon explained the effect of this amendment was to extend the Commission’s anti-bullying jurisdiction, allowing it not only to make orders to stop bullying, but also to stop sexual harassment, or to stop both bullying and sexual harassment. To reflect this, the Commission’s anti-bullying application forms have been revised so that applicants can now use a single form to apply for stop bullying and/or sexual harassment orders. Additionally, the prefixes used to identify application types in communications from the Commission as well as in decisions and orders, have been updated from “AB” (anti-bullying) to “SO” (stop orders).The Commission has also developed the Sexual Harassment Benchbook (Benchbook). This is a guide for people who need to prepare or respond to an application for orders to stop sexual harassment. The Benchbook includes caselaw and other information to assist parties in navigating this new jurisdiction.
The Commissioner discussed some of the similarities and differences between the anti-bullying and sexual harassment jurisdictions. One of the differences is that sexual harassment can occur with a single act of harassment, as opposed to bullying that requires repeated behaviour in order to meet the definition. Whilst both forms of conduct potentially create health and safety risks, it must be satisfied there is a continuing risk that sexual harassment at work will continue in order for the Commission to exercise its power to issue an order to stop sexual harassment. This element of the offence is objectively assessed by the Commission and is not a subjective test of whether the victim of sexual harassment believes the conduct will continue. As with the anti-bullying jurisdiction, the Commission has a broad discretion to make any order it considers appropriate to stop sexual harassment, however it cannot order a financial payment.
Non-disclosure agreements are commonly entered into as part of a settlement in sexual harassment claims. The issue of confidentiality in these types of agreements was identified by the Commissioner as a subject that may be challenging for the Commission in light of recent discussion on this issue. However, confidentiality will not only relate to non-disclosure or settlement agreements but will also extend to other necessary considerations for parties, and the Commission. These include deciding whether to hold public or private hearings and whether to publish the identity of the parties involved in decisions, orders or even in daily court listings. We suspect the Commission will start to see parties coming forward with a number of different relevant options on this issue. When parties are asked about the case, they may provide disclosure of some but not all matters related to a case, or agree on a line of commentary in respect to the issues and outcomes of a case that could be discussed in public.
A central focus in the way the Commission intends to case manage applications will be through a trauma-informed practice. Commissioner McKinnon explained this practice starts as soon as an application is lodged. To this end, Members, case managers and staff conciliators have undertaken trauma awareness training in preparation for the implementation of the sexual harassment jurisdiction. The Commissioner explained the purpose of the training was to support the wellbeing of Commission staff who would be case managing the application process. Additionally, the training would increase staff understanding on the impacts of sexual harassment on its victim so that staff could approach the work in a sensitive and informed manner. The Commission also planned to offer trauma informed training to its Workplace Advice Service partners. Further information about the training undergone by Commission staff is set out in the Commissions ‘Implementation Report: Orders to stop sexual harassment at work’.
Stats to date
As at 16 March 2022, the Commission has received 20 applications for an order to stop sexual harassment at work since the implementation of the jurisdiction in November 2021. This is in contrast to 200 applications for an order to stop bullying received during the same timeframe. Of those 20 stop sexual harassment applications, 7 were discontinued before the applications were even served on the Respondent, 2 were discontinued prior to the first listing, 1 was resolved in conference before a Member, and 3 were dismissed on either technical grounds or on the basis that there was no reasonable prospect of success. The remaining 7 applications are currently being progressed with the Commission.
If you require assistance in managing a complaint of sexual harassment or bullying, or need to respond to an application lodged in this new jurisdiction of the Commission, please do not hesitate to contact us. Justitia has been exploring with clients the range of early interventions available to them when managing complaints and supporting staff.