This benchbook has been prepared by staff of the Fair Work Commission to assist parties lodging or responding to applications to stop sexual harassment at work under the Fair Work Act 2009 . Information is provided to parties to assist in the preparation of material for matters before the Commission
On this page:
Where applications to the Commission seek orders to stop bullying and sexual harassment at work, this benchbook should be read together with the Anti-bullying benchbook.
This benchbook has been arranged to reflect the process users would follow when applying for an order to stop bullying or sexual harassment (or both) at work. Issues that may arise at a certain point during the process will be addressed as they come up. As a result, this benchbook may not deal with issues in the same order as the Fair Work Act.
Since 1 January 2014, the Fair Work Act has provided for the Commission to make orders to stop bullying at work.
While sexual harassment may constitute bullying in some circumstances, the 2 types of behaviour can differ substantially in nature and experience.[3
From 11 November 2021, the Fair Work Act provides for persons to apply to the Commission for orders to stop sexual harassment at work. The Commission can also make orders to stop both sexual harassment and bullying at work.
The Explanatory Memorandum to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 describes the provisions in the Fair Work Act dealing with orders to stop sexual harassment as follows:
Sexual harassment may also be addressed through discrimination laws. The Sex Discrimination Act prohibits sexual harassment in the workplace and in other areas of public life. Each state and territory also has its own anti-discrimination legislation which prohibits sexual harassment in the workplace and in other areas of public life.[5] The AHRC and anti-discrimination bodies in the states and territories can deal with complaints about sexual harassment (depending on matters including where the conduct occurred). Information about each of those bodies is available on their websites.[6]
Workplace bullying and sexual harassment may also be dealt with under work health and safety (WHS) laws. Since 2012, the Commonwealth and most states have adopted the national model WHS laws. As a result, the WHS legislation in most jurisdictions is very similar.[7] Anyone seeking to address workplace bullying or sexual harassment via a WHS regulator should contact the regulator in their state or territory.
Workplace bullying or sexual harassment which involves criminal behaviour may also be the subject of a complaint to, and investigation by, the police.
A person can apply for orders to stop sexual harassment if they:
are a worker (as defined in the Work Health and Safety Act 2011 (Cth))[8]
are not a member of the Defence Force[9], and
experience sexual harassment while at work in a constitutionally-covered business.[10]
See Fair Work Act ss.789FD(2A) and 12 and Sex Discrimination Act s.28A
A worker is sexually harassed at work if, while the worker is at work in a constitutionally-covered business, one or more individuals sexually harasses the worker.
‘Sexually harass’ has the same meaning as in s.28A of the Sex Discrimination Act. Section 28A(1) provides that a person sexually harasses another person if:
they make an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
· they engage in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
A worker could be sexually harassed by another worker or by another person when they are at work (for example, by a customer or client of the employer or principal, a supplier of the employer or business or a visitor to the worker’s place of work).
The role of the Commission, and the orders it can make are preventative – not remedial, punitive or compensatory. This means that Commission orders are intended to prevent the risk of further harm, not to punish or to provide financial compensation.
Note: The diagram below sets out the Commission’s usual process for dealing with applications for orders to stop bullying or sexual harassment (or both):
Applications to the Commission for orders to stop sexual harassment can be made from 11 November 2021.
Workplace sexual harassment which occurred before 11 November 2021 can be considered by the Commission when making an order to stop sexual harassment under s.789FF of the Fair Work Act. However, the Commission can only make an order if it is satisfied that there is a risk that the worker will continue to be sexually harassed by the relevant individual or individuals, so that there is a risk of future harm. In this way, the jurisdiction of the Commission addresses future conduct rather than penalising past conduct.[12]
When dealing with applications for orders to stop sexual harassment, the Commission can make any order it considers appropriate to prevent the worker from being sexually harassed at work by the named individual or individuals.[13]
However, the Commission cannot order the payment of compensation to an applicant and cannot make any orders if there is no risk that the applicant will continue to be sexually harassed at work by the named individual or individuals.
There are also other options for people who want to make a complaint about workplace sexual harassment.
Complaints may be made under federal, state and territory laws dealing with human rights, anti-discrimination and equal opportunity. To find out more about the requirements for making a complaint to those bodies, how to do so and the remedies available, visit:
the AHRC website, which includes information about sexual harassment
the human rights, anti-discrimination or equal opportunity commission in your state or territory:
Under model work health and safety laws, businesses and organisations must provide a safe workplace, including by reducing the risk of exposure of people in their workplace to health and safety risks. Sexual harassment is a known health and safety risk. To find out more, visit:
Fair Work Ombudsman for advice on sexual harassment in the workplace
Safe Work Australia, the statutory body that develops national WHS policy
federal, state and territory work health and safety authorities:
Depending on the circumstances, there may be other options for the Commission to deal with sexual harassment. These include general protections, unfair dismissal and unlawful termination applications.
The Workplace Advice Service is a free legal assistance program facilitated by the Commission for eligible employees and employers who have a concern or enquiry regarding dismissal, general protections, workplace bullying or sexual harassment.
The Commission’s role is to connect eligible persons with lawyers who may be able to help them. These lawyers work at law firms and other legal organisations that are completely independent of the Commission. The eligibility quiz on the Commission’s website helps employers and employees to find out if they are eligible for up to 1 hour of free legal advice through the service.
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.
Law Institutes and 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 for their members.
[3] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report 2020 at p.525.
[4] Statement of Compatibility with Human Rights, Explanatory Memorandum, Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 at para. 6.
[5] Anti-Discrimination Act 1977 (NSW), Anti-Discrimination Act 1992 (NT), Anti-Discrimination Act 1991 (Qld), Anti-Discrimination Act 1998 (Tas), Discrimination Act 1991 (ACT), Equal Opportunity Act 1984 (SA), Equal Opportunity Act 2010 (Vic), Equal Opportunity Act 1984 (WA).
[6] Australian Human Rights Commission (humanrights.gov.au); ACT Human Rights Commission (hrc.act.gov.au); Anti-Discrimination Board of NSW (antidiscrimination.justice.nsw.gov.au); Equal Opportunity Commission South Australia (eoc.sa.gov.au); Equal Opportunity Tasmania (equalopportunity.tas.gov.au); Equal Opportunity Commission Western Australia (eoc.wa.gov.au), Northern Territory Anti-Discrimination Commission (https://adc.nt.gov.au/); Queensland Human Rights Commission (qhrc.qld.gov.au) and Victorian Equal Opportunity and Human Rights Commission (www.humanrights.vic.gov.au).
[7] Occupational Health and Safety Act 2004 (Vic), Occupational Safety and Health Act 1984 (WA), Work Health and Safety Act 2011 (ACT), Work Health and Safety Act 2011 (Cth), Work Health and Safety Act 2011 (NSW), Work Health and Safety Act 2011 (Qld), Work Health and Safety Act 2012 (SA), Work Health and Safety Act 2012 (Tas), Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
[8] Fair Work Act s.789FC(2).
[9] Fair Work Act s.789FC(2).
[10] Fair Work Act s.789FD(2A).