FWC stop-sexual-harassment orders under section 527D of the Fair Work Act

The jurisdiction

Section 527D of the Fair Work Act 2009 (Cth) provides the Fair Work Commission with the power to make orders to stop sexual harassment in connection with work. Eligible workers can apply to the Commission for these orders.

The jurisdiction to hear these applications commenced on 11 November 2021, following the enactment of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

Further amendments, introduced by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, broadened the Commission’s jurisdiction from 6 March 2023 to include stop-sexual-harassment-and-discrimination orders.

Who can apply

Applications for FWC stop-sexual-harassment orders can be made by a ‘worker’. For the purposes of these orders, a ‘worker’ is broadly defined and includes employees, contractors, subcontractors, outworkers, apprentices, trainees, students, and volunteers. This definition also extends to independent contractors.

To be eligible to apply, the worker must be performing work for a ‘constitutionally-covered business’. This requirement ensures the Fair Work Commission has jurisdiction to hear the application.

The applicant must also satisfy the FWC that they reasonably believe sexual harassment has occurred in connection with their work and that there is a risk the harassment will continue.

What orders the Commission can make

The Fair Work Commission can make any order it considers appropriate to address sexual harassment, with the exception of orders requiring payment of a pecuniary amount. These orders are designed to prevent further harm and rectify the workplace environment. Sexual harassment — positive duty s 47C

Common orders issued by the Commission include preventing further contact between the parties, mandating changes to workplace policies, requiring training for employees, imposing restrictions on work duties, or relocating the person who engaged in the harassing conduct. The specific orders made will depend on the circumstances of the case.

Orders made under section 527D of the Fair Work Act are enforceable through the Federal Court. A breach of a Commission order constitutes a contravention of a civil remedy provision under section 539 of the Fair Work Act.

Interaction with discrimination law

Workers who experience sexual harassment may also lodge a complaint under the Sex Discrimination Act 1984 (Cth) with the Australian Human Rights Commission. This provides an alternative avenue for redress and investigation.

Following the Respect@Work reforms, employers have a positive duty under section 47C of the Sex Discrimination Act to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments, and victimisation. The Australian Human Rights Commission now has powers to investigate and enforce this positive duty, effective from 12 December 2023.

Workers are able to pursue both the Fair Work Commission stop-order pathway and the Australian Human Rights Commission complaint pathway concurrently. This means a worker can seek a stop-order from the FWC and simultaneously lodge a complaint with the AHRC.