First ruling in Fair Work’s new Sexual Harassment Jurisdiction

At the end of 2021, the Fair Work Commission made its first decision under the new anti-sexual harassment jurisdiction, which came into effect just a month earlier.

The Respect@Work report prepared by the Sex Discrimination Commission, which led to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 being passed, saw amendments made to Part 6-4B of the Fair Work Act 2009 (Cth) to include a power allowing the Commission to make orders that prevent sexual harassment at work under anti-bullying provisions.

If the Commission is so satisfied, it can now issue an order preventing a worker from being bullied or sexually harassed in cases where an application is made under s.789FC of the Fair Work Act 2009 (Cth) where it is found that:

• the worker has experienced bullying, sexually harassment or both by an individual or group of individuals; and
• the risk exists that the worker will continue to experience bullying and/or sexual harassment at work by the individual or group of individuals.

In the December 2021 decision, an application for an order to stop bullying and sexual harassment was made against two workers employed by a separate business in the same complex as the applicant’s business. Commissioner Leyla Yilmaz quickly dismissed the application on the basis that it did not hold a reasonable prospect of success.

Few details about the application are available, only that the applicant had sought the two respondents to be registered as “bad men” and Commissioner Yilmaz found that, due to the applicant no longer operating their business in the same complex as the respondent, there was no risk of continued bullying or sexual harassment of the applicant at work. Intervention orders preventing the parties from being within 200 meters of each other were also in place.

Under the Fair Work’s new sexual harassment jurisdiction, the Commissioner must find that the applicant is at risk of continued bullying or sexual harassment in their place of work. As Commissioner Yilmaz found that the parties would no longer cross paths at work, there was no risk of continued bullying or sexual harassment in this environment and therefore the application carried no prospect of success, leading to its dismissal.

If you are an employer that is concerned about how Fair Work’s new sexual harassment jurisdiction could impact your workplace and/or workers or you are an employee who has experienced bullying and/or sexual harassment in the workplace and you need advice about the next steps, our experienced employment lawyers can help.