We’ve Got You Covered
Coutts is dedicated to supporting employees facing sexual harassment in the workplace. We understand the sensitivity and seriousness of these issues. Our team offers confidential legal advice and strong advocacy to help you understand and fulfill your rights and obligations in these situations.
Karena Nicholls
Partner
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What is Sexual Harassment at Work?
- Unwelcome conduct of a sexual nature in relation to a person.
- It occurs where a reasonable person would anticipate the possibility of the person who is harassed being offended, humiliated or intimidated.
- Conduct includes making a statement of a sexual nature in front of or to a person. It can also be made in writing.
- Workplace sexual harassment does not need to occur several times for it to be harassment, it can occur as a one-off incident.
- Sexual harassment can include:
- Inappropriate staring, leering or loitering.
- Unwelcome touching.
- Suggestive comments or jokes, insults or taunts, based on sex, or sexual gestures.
- Using suggestive or sexualised nicknames for a person.
- Persistent unwanted invitations to go out on dates.
- Intrusive questions or comments about a person’s private life or body.
- Unnecessary familiarity, such as deliberately brushing up against a person.
- Displaying material of a sexual nature in the workplace.
- Communicating sexually explicit material in person or through phone calls, online interaction, email, social media or text messages.
Governing Legislation – harassment occurred on or after March 6 2023
- Part 3-5A of the Fair Work Act prohibits sexual harassment in connection with work.
Who Can Apply?
To be able to apply for a stop sexual harassment at work order, you must be:
- A worker
- Employee;
- Contractor or subcontractor;
- A small business owner who works in the business;
- An employee of a contractor or subcontractor;
- An employee of a labour-hire agency;
- An outworker;
- An apprentice or trainee;
- A student on work experience; or
- A volunteer.
- And working in a constitutionally covered business
- Pty Ltd company;
- Foreign corporation;
- Trading or financial corporations formed within the Commonwealth of Australia;
- The Australian Government;
- A commonwealth authority;
- A body corporate incorporated in a territory of Australia; or
- A business or organisation conducted principally in a territory of Australia or a place acquired by the Commonwealth for public purposes.
- And still connected to the workplace where the conduct occurred.
The sexual harassment must have occurred when the employee was at work, including instances away from the work premises.
What to do if you are Sexually Harassed at Work?
- Speak with someone you trust, a friend or a health professional.
- You could raise the issue with the person; however, you are under no obligation to talk to anyone else before coming to the Commission.
- You could try to resolve the issue at work:
- Through your supervisor or manager
- Human Resources
- Health and Safety Representative
- Union Representative
- Employee assistance program
- Your workplace may have certain policies and procedures in place to deal with sexual harassment issues. You may consider making a complaint via this channel.
- Depending on what has happened, a government body may be able to help you.
- Visit the Respect at Work website for information on dealing with workplace sexual harassment.
- Apply for orders to stop sexual harassment at work through the Fair Work Commission.
- Contact the Fair Work Ombudsman
- If you believe you have experienced sexual harassment for discriminatory reasons, you may be able to make a complaint to the Australian Human Rights Commission.
- Sometimes sexual harassment can be considered a crime, you can contact the Police for more advice.
Entities that may not be eligible?
- A sole trader or partnership
- A state government department
- A non-corporate state public sector agency
- A local government not engaged in trade or financial activity
Making an Application for Stop Sexual Harassment at Work
To make an application for an order to stop sexual harassment at work:
- Determine if you are eligible
- You will need to fill out form F72A or F75 (If harassment occurred after 6 March 2023) – Application for an Order to Stop Sexual Harassment
- Pay the application fee. The fee for 2023-24 is $83.30. The application will not be processed if you have not paid the fee.
- You can apply for a waiver of the fee if you are experiencing financial hardship via Form F80 – Waiver of Application Fee.
- Once your application is received, a staff member of the Commission will call you to discuss it.
- The Commission will also send a copy of the application to:
- Each person named in the application as engaging in sexual harassment.
- Each employer who is named in the application.
- A lawyer or agent involved in your case.
- You are able to retain free legal advice from the Workplace Advice Service.
- Once a response has been received for your application, a Commission Member will consider it and decide the next steps. These could include:
- Trying to resolve the case using conciliation – (a confidential, informal discussion between the parties); or
- A conference or hearing.
Outcomes
- If the conduct occurred on or after 6 March 2023, once an application is received, commonly, the Commission will hold a Member Conference as the first step.
- If the application does not settle at a Member Conference, the next steps will depend on the nature of the application. If the aggrieved person:
- Seeks orders to stop sexual harassment in connection with work; or
- Has asked the Commission to deal with the dispute and the Commission has issued a certificate, a determinative conference, hearing or arbitration may be held.
- If the conduct occurred before 6 March 2023:
- The Commission will assess the application and any responses or objections to decide the next steps.
- Some cases will start with conciliation. If successful, both sides will reach an agreement and the case ends.
- Some cases will go straight to a Commission Member, who will then decide the best process for dealing with the case. This could include a conciliation, conference or formal hearing.
- The Commission will try to resolve the matter within 16 weeks of receiving the application.
- If the case does not settle, you may need to attend a conference or hearing with a Commission Member. You should prepare by printing out and reading all documents relevant to the case.
- After the hearing, the Commission Member will make a decision about the outcome.
- Parties are given the opportunity to appeal the decision or order.
Book Your Sexual Harassment Obligations Consultation Now
What to Expect with Coutts Lawyers
Step 1: Initial Contact
Reach out to Coutts Lawyers via our website, phone, or in person. Briefly describe your matter.
Step 2: Consultation Appointment
Schedule and attend a meeting with a Coutts lawyer / Conveyancer to discuss the specifics of your matter and desired outcomes.
Step 3: Information & Legal Advice
Share all related documents and information. Your lawyer / Conveyancer will review everything, clarify aspects as needed, and then advise on the best action course.
Step 4: Action Plan Development
Based on the advice, an appropriate action plan will be formulated. This may involve communication, documentation processes, or further legal steps.
Step 5: Implementation
Execute the action plan, addressing a range of legal scenarios as necessary.
Step 6: Resolution & Closure
Navigate towards a resolution, with the path determined by the nature of the matter. Your Lawyer / Conveyancer will outline any final actions or considerations.
Introducing Karena
Your Compassionate Lawyer.
Meet Karena, a Partner at Coutts Lawyers & Conveyancers, and the head of our esteemed Injury Compensation and Employment Law teams. With over two decades of experience in the field of Insurance Law, Karena’s passion, dedication, and client-focused approach have established her as a leading authority in compensation and employment law.
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Sexual Harassment Obligations FAQ’s
Sexual harassment in the workplace is defined as any unwelcome conduct of a sexual nature. This can include a range of behaviours, from verbal comments and jokes to physical actions like touching or leering. It’s not limited to direct interactions either; it can also involve displaying offensive material or sending inappropriate messages. The key aspect is that the behaviour is uninvited and makes the recipient feel uncomfortable, offended, or intimidated. It’s important to remember that what constitutes sexual harassment can vary based on individual perceptions and context, and it’s not always about the intent of the person exhibiting the behaviour but how it is received by the person on the receiving end.
Yes, sexual harassment does not need to be a repeated or ongoing behaviour to be considered harassment. Even a single incident, if it’s of a sexual nature and unwelcome, can constitute sexual harassment. This might include a one-time comment, gesture, or any form of physical contact that is inappropriate and makes the person on the receiving end feel harassed. The seriousness of sexual harassment is judged by how the conduct affects the individual and whether a reasonable person would find it offensive. It’s essential for workplaces to recognise and address even isolated incidents, as they can significantly impact an individual’s well-being and workplace environment.
If you experience sexual harassment at work, it’s important to know that there are steps you can take to address the situation. Firstly, if you feel comfortable and safe doing so, you may directly inform the person that their behaviour is unwelcome and ask them to stop. However, if direct communication is not safe or comfortable, or if the behaviour continues, you should report the incident to your supervisor, human resources department, or any designated personnel within your organisation. Most workplaces have specific procedures for handling sexual harassment complaints, which typically include a confidential process for filing a report and an investigation. Remember, it’s crucial to document the incidents as much as possible, including dates, times, places, and the nature of the behaviour, as this information can be vital during any investigation. Your workplace should take your complaint seriously, ensure your safety, and take appropriate action to address the harassment.
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