Sexual harassment disputes benchbook now accessible

21 October 2024

On October 1st, the Fair Work Commission (FWC) published the Sexual Harassment Disputes Benchbook, a comprehensive guide designed to help individuals understand and manage cases of sexual harassment in the workplace. It explains how to deal with these issues under Australian law, specifically following rules in Part 3-5A of the Fair Work Act 2009 (“the Act’).

The guide applies to cases of sexual harassment that happened or started after 6 March 2023. These changes came from a new law called the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which aims to better protect workers and make it easier to handle these disputes.

Where alleged sexual harassment occurred or commenced before 6 March, 2023, the stop sexual harassment provisions in Part 6-4B of the Act continue to apply.

Key Changes and Legal Framework

1. Jurisdictional Expansion:

• Part 3-5A of the Act now explicitly prohibits sexual harassment "in connection with work," significantly expanding the scope beyond incidents that occur "at work."
• The amendments implement Recommendation 28 of the Respect@Work report, ensuring a broader protection for all workers, including prospective employees and business operators.
  
  
  

2. Eligibility and Applicant Definition:

• The Act now permits any worker, individuals seeking work, or business operators who experiences harassment in relation to their work to lodge an application. 
• The definition of a "worker" follows the Work Health and Safety Act 2011 (Cth) and includes employees, contractors, volunteers, and other non-traditional workers.
• Industrial associations that represent the work-related interests of an affected person are also allowed to start legal proceedings on their behalf.
  
  
  

3. Prohibition and Expanded Liability:

• Under Section 527D of the Act, sexual harassment includes unwelcome sexual advances, requests for sexual favours, or conduct of a sexual nature where a reasonable person could foresee offense, humiliation, or intimidation.
• The law holds business operators (principals including employers) vicariously liable for an act of unlawful sexual harassment of its employees or agents if the act was done ‘in connection with’ their work or duties as an agent. The Commonwealth may be liable liability for the actions of defence members.
  
  
  

4. Process for Resolution:

• The FWC adopts a trauma-informed approach in managing sexual harassment disputes, with complex case managers reviewing all applications and providing adequate support.
• Applications for orders to stop sexual harassment can be resolved through conciliation, mediation, or arbitration. If these methods do not lead to a resolution, disputes can be taken to court under the Fair Work Division of the Federal Circuit Court and Family Court of Australia.
  
  
  

5. Orders and Remedies:

• The Fair Work Commission (FWC) can issue orders to prevent future harassment, but it does not have the authority to award financial compensation to victims.
• Individuals seeking compensation for past harm must pursue remedies under alternative legal frameworks, such as anti-discrimination laws or the Australian Human Rights Commission Act 1986 (Cth).
• There are rules limiting a person’s ability to file multiple claims in different legal systems for the same incident to avoid receiving the same remedy more than once.
  
  
  

6. Interaction with State and Territory Laws:

• Federal laws work alongside state and territory anti-discrimination and workplace health and safety laws, creating a coordinated approach.
• The benchbook warns that individuals cannot seek compensation for the same incident under both the Fair Work Act and other anti-discrimination laws.
  
  
  

7. Support and Additional Avenues:

• The FWC's Workplace Advice Service offers eligible individuals one hour of free legal help. Additional support can be obtained from legal centres in each state and territory and AHEIA members can utilise AHEIA Unilegal for legal services. 
• The benchbook highlights the importance of knowing your rights and the legal options available, including protections against unfair dismissal.      

This benchbook is a vital resource for legal professionals, employers, and workers. It helps ensure compliance with the updated laws and aids in resolving sexual harassment disputes under the revised Fair Work Act.

Please see the Sexual Harassment Disputes Benchbook attached as a PDF below.