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Commission’s new sexual harassment powers in practice

Employment Law: 24 April 2024

Author: Bianca Mazzarella - Our People

Recent case law has affirmed the Fair Work Commission’s position that it will not make orders to stop sexual harassment when the alleged harasser is no longer employed by the Company (Application by AB [2024] FWC 967).

Despite forming a preliminary view that a co-worker had sent vile and inappropriate texts to a junior co-worker at Port City Meats, Commissioner Hunt declined to exercise new powers under section 3-5A of the Fair Work Act 2009 (Cth) introduced by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 which permits the Commission to make anti-harassment orders.

Commissioner Hunt did not make any anti-harassment orders, given the employee in question had resigned and therefore it was found that there was “no future risk of the applicant being sexually harassed”.

This decision follows leading authorities in relation to anti-bullying orders concerning the Commission’s powers to make such orders when a party to the dispute has been dismissed and affirms that such orders will only be made when there is a risk of continued bullying.

What does this mean for employers

  1. Employers should review their sexual harassment policies;
  2. Employers should investigate and take any sexual harassment allegations seriously;
  3. Employers should take appropriate disciplinary action (following an investigation into inappropriate conduct); and
  4. Following investigation, employers should assess whether or not there is a risk of continued bullying and mitigate such factors (where appropriate).

Bianca Mazzarella is Special Counsel at Aitken Partners and has many years of experience in dealing with matters involving sexual harassment. Bianca can be contacted on 8600 6093 or for all your employment law queries.

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