Just prior to Christmas, the Fair Work Commission issued the first decision under its new anti-sexual harassment jurisdiction, which commenced operation on 11 November 2021.
Following a recommendation arising from the Sex Discrimination Commission’s landmark Respect@Work report, Part 6-4B of the Fair Work Act 2009 (Cth) was amended to include a power for the Commission to make orders to prevent sexual harassment at work under the existing anti-bullying jurisdiction. Because of these amendments, the Commission can now issue an order to prevent a worker from being bullied or sexually harassed where an application is made under s.789FC of the Fair Work Act 2009 (Cth) and it is satisfied that:
- the worker has been bullied or sexually harassed (or both) by an individual or group of individuals; and
- there is a risk that the worker will continue to be bullied and/or sexually harassed at work by the individual or group of individuals.
In the first decision in this new jurisdiction, Commissioner Yilmaz considered an application for an order to stop bullying and sexual harassment made against two individuals employed in a neighbouring business in the same warehouse complex as the applicant’s own business.
The decision contains little detail about the alleged conduct (other than that the applicant was seeking an order that the two respondents be registered as “bad men”), because the application was swiftly dismissed on the basis it had no reasonable prospect of success.
In her decision, Commissioner Yilmaz found that there was no risk of continued bullying or sexual harassment of the applicant at work (as required under s.789FF(1)(b)) because the applicant no longer operated their business in the same warehouse complex as the respondents, and the parties had intervention orders preventing them from being within 200m of each other.
Commissioner Yilmaz ultimately found that because the parties “no longer [had] any physical connectivity, where they [would] cross paths at work” there was no risk of continued bullying or sexual harassment at work and the application had no prospect of success. The application was therefore dismissed on this basis.
Given the brevity of this decision, it provides only limited insight into the operation the Commission’s new anti-sexual harassment jurisdiction. However, with the #metoo movement continuing to evolve and gain momentum, this is certainly a space to watch – we expect it will be the first of many decisions in this space in the coming year.
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