How to apply to the Fair Work Commission if you're experiencing sexual harassment

What does an order from the Fair Work Commission do?

The Fair Work Commission can make any order it considers appropriate to prevent you from being sexually harassed at work, except for orders to pay money or for reinstatement to employment.

Examples of orders include:

• changes to work arrangements, including team structures and work patterns;

• that a person must stop engaging in certain behaviour and their behaviour monitored;

• that an employer must provide training or information to workers.

Orders can be made against your employer, the harasser and others. The Fair Work Commission may take into account changes already made to reduce or eliminate the risk of sexual harassment at work. For example, if new policies have been introduced or work arrangements have been modified.

If a person breaches a stop sexual harassment order made against them, you (or a union or Fair Work Inspector) may apply to the Federal Court of Australia, the Federal Circuit and Family Court of Australia or a State or Territory court.

A court can make separate orders, including for the payment of money. You have 6 years after the alleged breach of the Fair Work Commission order to make a court application.

Can I make an application?

Any worker who reasonably believes that they have been sexually harassed while at work can apply for a stop sexual harassment order.

You are a worker if you carry out work in any capacity for a person conducting a business or undertaking. This includes if you are:

• an employee;

• a contractor or subcontractor;

• an employee of a contractor or subcontractor;

• an employee of a labour hire company;

• an outworker;

• an apprentice;

• a student gaining work experience; or

• a volunteer.

There are some limited circumstances when a person is not a worker, for example members of the Defence Force and volunteers for a volunteer association that has no employees.

A person conducting a business or undertaking includes companies, sole traders, partnerships, government departments, government businesses and local governments. When the term “employer” is used in this resource it also means the principal (primary person) who engages a contractor or subcontractor and other types of persons conducting a business or undertaking.

If you are unsure if the business where you work would be a business that would fall within the powers of the Fair Work Commission to make an order, known as a “constitutionally covered business”, see our resource ‘What to do if you have been sexually harassed at work‘ for more information.

What do I need to show to apply for an order?

To apply for a stop sexual harassment order, you need to show that:

• you reasonably believe that you have been sexually harassed at work by one or more individuals; and

• there is a risk that you will continue to be sexually harassed at work by the individual(s).

1. Reasonable belief

Having a reasonable belief means that you actually and genuinely believe that you have been sexually harassed at work. There must be some objective or rational basis for your belief.

2. Sexual harassment

The law describes sexual harassment at work like this:

Sexual harassment in the workplace can take many different forms, including:  

• unwelcome or inappropriate physical contact by a colleague or supervisor (e.g. touching, patting, pinching, touching, kissing, hugging or brushing against a person)

• requests for sexual favours or sex in exchange for workplace benefits

• negative treatment in the workplace if another’s sexual advances are rejected, such as threat of termination or bullying

• sexual activities engaged in under threat of losing one’s employment

• sharing of sexual material around the workplace, including posters and screensavers 

• sexual phone calls, texts or emails

• a requirement that employees wear sexually-suggestive clothing

• banter of a sexual nature, lewd jokes or sharing of stories about sexual experience 

• comments of a sexual nature about someone’s appearance

• repeatedly asking for a date or sexual favours despite being rebuffed

• sexually suggestive, offensive or demeaning remarks, gestures or facial expressions (e.g. leering or staring a person’s body up and down)

• questions about a person’s sexual activities.

The intent of the person engaging in sexual harassment does not matter.

Likewise, the sex, gender and/or gender identity of the people involved in the harassment is irrelevant. Anyone can be impacted by sexual harassment. 

Sexual harassment may occur in a single incident or a series of incidents. It can be physical, verbal or written. Also, sexual harassment may be subtle, rather than explicit or obvious.

Sexual harassment may involve an abuse of power and/or trust and may be directed at a person who may not be able to stop the behaviour easily (for example, where the sexual harassment occurs between people of different levels of seniority). 

3. At work

Whether you are “at work” depends on the circumstances but is usually when you are performing work regardless of your location or the time of day. You can be “at work” when doing other activities permitted by your employer, for example, taking a meal break or attending a work event.

A worker can be sexually harassed at work by another worker or by a customer, visitor or other person while at work.

4. Continuing risk of sexual harassment

The Fair Work Commission cannot make orders to stop sexual harassment if there is no risk that the worker will continue to be sexually harassed at work by the individual(s), for example, if they no longer work at the same workplace.

How do I apply for an order?

1. You complete and lodge the application form

To apply for an order with the Fair Work Commission, you need to complete the relevant forms and lodge them to the Commission.

2. FWC serves your application on your employer

The Fair Work Commission (FWC) will review the application and send a copy to your employer and to others named in the application as allegedly engaging in the sexual harassment, and their employer if it is different to yours.

3. Your employer responds to your application

Within 7 calendar days after being served a copy of the application:

• The employer named in the application must lodge a response with the Fair Work Commission.

• Individuals named in the application as having allegedly engaged in sexual harassment must lodge a response with the Fair Work Commission.

• A copy of any response filed with the Fair Work Commission must be sent to you.

4. FWC deals with your application

The Fair Work Commission (FWC) must start dealing with the application within 14 days after it is lodged.

The Fair Work Commission may ask the parties to attend a:

• conciliation; or

• determinative conference; or

• hearing.

What if you cannot resolve the dispute?

If the dispute can’t be resolved, the Fair Work Commission may issue a certificate so you can take your sexual harassment dispute further.

The Fair Work Commission will issue a certificate if:

• satisfied that all reasonable attempts to resolve the dispute have been unsuccessful; or 

• satisfied that all reasonable attempts to resolve the dispute are likely to be unsuccessful.

Once a certificate is issued, you have 60 days to:

1. Bring a sexual harassment court application, or

2. If you and your employer agree, your dispute can then be arbitrated by the Fair Work Commission.

Arbitration is a formal method of dispute resolution, resulting in a binding decision.

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