Changes to the Fair Work Act 2009

Following recent high profile instances of alleged sexual harassment taking place at both the High Court and the Federal Parliament, the Australian government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which was passed and enacted into law.

  • This Act amends the Fair Work Act 2009 by
  • Introducing the ability for stop sexual harassment orders to be issued by the Fair Work Commission, similar to its ability to issue stop workplace bullying orders
  • Providing a statutory definition of sexual harassment
  • Including sexual harassment in the definition of ‘serious misconduct’ and as an example of a valid reason for a dismissal in the factors considered when deciding if a dismissal was harsh, unjust or unreasonable
  • Including miscarriage as a reason to access compassionate leave.

In addition to making applications to the Equal Opportunity Commission or the Australian Human Rights Commission, workers who have been subjected to sexual harassment in the workplace can now make an application to the Fair Work Commission for orders to stop sexual harassment.

These applications will be dealt with by the Commission in the same way that applications to stop bullying are done now.  The FWC will have wide discretion to make orders as it sees fit, with the focus on stopping the sexual harassment in the workplace.  However, same as applications to stop bullying, the FWC will not be able to make an order requiring an employer pay monetary compensation to a worker.

The changes to the Act provide that workers not only have to demonstrate that they have been sexually harassed but also that there is a risk of the sexual harassment continuing in the workplace.  As such, similar to what it does not with anti-bullying applications, growers can expect the FWC to want to see their policies around sexual harassment in the workplace, to ascertain any future risk should a grower be required to respond to an application.

There has never been a more important time for growers to ensure they have robust policies in place making it clear to its workers that there is no place in their business for sexual harassment and clear procedures for its workers to be able to make complaints and have them addressed.

A generic harassment policy is available for growers in the ‘Employee Handbook’ which can be downloaded from the HR Support section of the VegetablesWA website.

If growers have specific questions relating to their business on the issues raised in this article, they can contact Stephen Farrell on 0455 833 352 or at stephen.farrell@vegetableswa.com.au.