Orders to stop bullying or sexual harassment (or both) at work

See Fair Work Act s.789FF

If a worker has made an application under s.789FC of the Fair Work Act and the Commission is satisfied of either or both of the following:

• the worker has been bullied at work by an individual or group of individuals and there is a risk that this will continue, or
• the worker has been sexually harassed at work by one or more individuals and there is a risk that this will continue then the Commission may make an order to prevent the worker from being bullied or sexually harassed (or both) at work.[223]

The Commission can make any order it considers appropriate (other than an order requiring a financial payment) to prevent the worker from being bullied and/or sexually harassed at work by the individual or individuals.[224]

Where a finding of bullying and/or sexual harassment is made and there is some future risk, orders to stop the bullying or sexual harassment (or both) would be expected to follow. Such orders would, in appropriate cases, aim to establish a suitable basis for future mutually safe and constructive working relationship.[225]

The laws to stop bullying and sexual harassment are directed at preventing workers being bullied and/or sexually harassed at work. They are not directed at punishing bad behaviour (although they may have a deterrent effect) or compensating the victims of such behaviour. Their primary aim is to protect workers from future harm, and the focus is on resolving the matter and enabling normal working relationships to resume.[226]

Orders are not available in cases where the Commission finds that there is no risk of bullying or sexual harassment occurring again, which may be the case, for example, when the person who harassed the worker is no longer connected to the workplace.[227]

Related information

• Risk of continued sexual harassment

Section 789FF of the Fair Work Act does not limit the persons against whom orders can be made. The Commission may make orders directed to the behaviour of individuals found to have engaged in bullying and/or sexual harassment as well as their respective employer(s)/principal(s). As noted in the Explanatory Statement to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021:

Where the parties agree that orders should be made and the Commission is satisfied that bullying and/or sexual harassment has taken place, and there is a risk of further bullying or harassment, consent orders may be issued by the Commission.

The Commission has wide powers to make orders to stop bullying or sexual harassment (or both), but it cannot order the payment of money. The Commission can include any terms in an order that it considers appropriate to prevent the worker from being bullied at work, sexually harassed at work, or both.[229]

The Commission’s powers must be informed by, but are not necessarily limited to, the bullying and/or sexual harassment found to have occurred. Orders must be directed towards the prevention of the worker being bullied and/or sexually harassed at work in the future by the individual or individuals concerned, be based upon appropriate findings, and have regard to the considerations established by s.789FF(2) of the Fair Work Act.[230]

The range of orders that the Commission may make includes orders requiring:

• changes in working arrangements
• one or more individuals to stop specified behaviour
• regular monitoring of behaviours by an employer
• compliance with an employer’s policy
• the provision of information and additional support and training to workers
• conduct a safety risk assessment for the workplace, and
• a review of the employer’s workplace policies.[231]

The orders that are made depend on the facts and circumstances of the case. The Commission may also make orders that go to the broader conduct within, and culture of, a workplace. These could include the establishment and implementation of appropriate policies, procedures and training.[232]

Examples of orders of the Commission has made in response to bullying behaviour include:

• orders that individual parties:
  • not make contact with each other
  • only make contact via email during specific times
  • not attend certain premises
  • not denigrate or humiliate one another,
  • behave in a way that is reasonable and professional
  • not deliberately or unreasonably delay the performance of work
  • refrain from making written and/or oral statements to each other or others that are abusive, offensive, or disparaging;
• orders for companies:
  • to provide all staff with additional training on appropriate workplace behaviour
  • to ensure they have in place updated ‘anti-bullying’ policies and complaints handling procedures
  • to commission specific training for management personnel who will be investigating complaints about workplace bullying
  • to implement, and actively monitor, the effectiveness of control measures identified in risk assessments, or
  • to arrange for a Work Safe inspector to attend meetings with parties.[233]

The Commission has also observed, in the context of an application to stop bullying, that physical and/or functional separation in the workplace of a person who has alleged that they have been bullied, and those said to have engaged in bullying conduct is one way of preventing future bullying, although it may be a last resort where other practical measures will not be effective.[234]

If an applicant is suffering from a medical condition that prevents their return to the workplace without some appropriate modifications, the Commission may consider such measures in an order.[235]

The Commission cannot order reinstatement or the payment of compensation or another amount of money.[236]

Section 789FF(1) of the Fair Work Act does not prevent the Commission from making an order that would require some financial expenditure on the part of the employer to give effect to the order.[237]

An order which has the effect of requiring the continuation of the payment of normal wages for work performed in the context of a continuing employment relationship does not fall within the exclusion in s.789FF(1) of the Fair Work Act.[238]

A person who has been sexually harassed at work and seeks compensation may be eligible to make a claim in another jurisdiction, such as to the AHRC or an anti-discrimination body in their state or territory. Information about those jurisdictions; how to make a complaint and what remedies are available can be found on their respective websites.[239]

Other legal help

You can find a community legal centre in your area by searching the Community Legal Centres website. The Where to get legal help page of Commission’s website includes contact details for some of the main community legal centres in each state and territory who may be able to assist with free legal advice or other advisory services.

The law institutes or law societies in each state or territory may be able to refer a party to a private solicitor who specialises in workplace law.

Unions and employer organisations may also be able to provide advice and assistance.