Using the Anti-Bul­­ly­ing Juris­dic­tion of the Fair Work Com­mis­sion for Sex­u­al Harass­ment Matters

The Lim­i­ta­tions of the AHRC Sex­u­al Harass­ment Jurisdiction

Com­men­ta­tors (both lay and expert) have recent­ly lament­ed that the Fair Work Com­mis­sion (FWC) does not have a spe­cif­ic juris­dic­tion to expe­di­tious­ly deal with sex­u­al harass­ment complaints.

Instead, the usu­al approach in sex­u­al harass­ment mat­ters (in the fed­er­al juris­dic­tion) is to lodge a com­plaint with the Aus­tralian Human Rights Com­mis­sion (AHRC), a process that can take months before the mat­ter is con­cil­i­at­ed by the AHRC. The AHRC is unable to make any orders – if the mat­ter does not resolve through the AHRC con­cil­i­a­tion process then pro­ceed­ings need to be com­menced in either the Fed­er­al Cir­cuit Court or Fed­er­al Court for it to be heard. That process can take years and is pro­hib­i­tive­ly expen­sive for many complainants. 

The lim­i­ta­tions of the mech­a­nisms present­ly avail­able to deal with sex­u­al harass­ment mat­ters have led to calls for reform. It will like­ly be a mat­ter can­vassed as part of the cur­rent AHRC ​“Nation­al Inquiry into Sex­u­al Harass­ment in Aus­tralian Work­places”. These lim­i­ta­tions raise the ques­tion of whether there are viable alter­na­tive paths avail­able to complainants.

Using the FWC for Sex­u­al Harass­ment Matters 

While the FWC does not have a spe­cif­ic juris­dic­tion to deal with sex­u­al harass­ment, it does have an anti-bul­ly­ing juris­dic­tion con­ferred upon it by the Fair Work Act 2009 (Cth) (FW Act).

To what extent could this juris­dic­tion be effec­tive­ly used for sex­u­al harass­ment mat­ters? Such an approach to sex­u­al harass­ment com­plaints looks beyond con­ven­tion­al cat­e­gories or nomen­cla­ture and shoe­horns sex­u­al harass­ment into the anti-bul­ly­ing frame­work in order to access the flex­i­bil­i­ty of the FWC anti-bul­ly­ing jurisdiction. 

For the pur­pose of that juris­dic­tion, ​“work­place bul­ly­ing” occurs when: 

• an indi­vid­ual or group of indi­vid­u­als repeat­ed­ly behaves unrea­son­ably towards a work­er or a group of work­ers at work; and 
• the behav­iour cre­ates a risk to health and safety.

Rea­son­able man­age­ment action con­duct­ed in a rea­son­able man­ner does not con­sti­tute work­place bullying.

The FWC bench­book on the anti-bul­ly­ing juris­dic­tion sets out, on the basis of var­i­ous author­i­ties, exam­ples of bul­ly­ing includ­ing aggres­sive and intim­i­dat­ing con­duct, belit­tling or humil­i­at­ing com­ments, vic­tim­i­sa­tion, spread­ing mali­cious rumours, prac­ti­cal jokes or ini­ti­a­tion, exclu­sion from work-relat­ed events and unrea­son­able work expectations. 

These are intend­ed to be illus­tra­tions of bul­ly­ing con­duct by way of guid­ance. There is no exhaus­tive list of behav­iours in the FW Act that rel­e­vant­ly con­sti­tute bullying. 

The FWC anti-bul­ly­ing juris­dic­tion is not enlivened unless there is ​“work­place bul­ly­ing” (as defined above). The key ele­ments need to be satisfied. 

First, the con­duct needs to be ​“repeat­ed”. That rules out any com­plaint reliant upon a sin­gle event. By con­trast, sex­u­al harass­ment (as defined in the Sex Dis­crim­i­na­tion Act 1984 (Cth) (SD Act)) does not need to be repeat­ed. That said, giv­en that sex­u­al harass­ment often (although not always) occurs in a pat­tern this ele­ment would usu­al­ly be satisfied. 

The alleged per­pe­tra­tor must ​“behave unrea­son­ably”. A com­pelling argu­ment could be made that con­duct which breach­es the sex­u­al harass­ment pro­vi­sions of the SD Act (which, by def­i­n­i­tion, will be unwel­come) is unrea­son­able. How could the types of behav­iours that con­sti­tute sex­u­al harass­ment such as unwel­come touch­ing, star­ing or leer­ing, sug­ges­tive com­ments or jokes, unwant­ed invi­ta­tions to go out on dates, requests for sex, sex­u­al­ly explic­it phys­i­cal con­tact and sex­u­al­ly explic­it emails or text mes­sages be said to be ​“rea­son­able”?

Final­ly, the con­duct in ques­tion must cre­ate a risk to health and safe­ty. Unless the sex­u­al harass­ment com­plained of is triv­ial or minor, with no or lit­tle impact on the com­plainant, then this test will like­ly be read­i­ly sat­is­fied. The con­duct does need to lead to actu­al harm; the risk of harm is sufficient. 

Once these ele­ments are sat­is­fied the FWC must deal with the mat­ter in accor­dance with the FW Act – and quick­ly — with­in 14 days of the appli­ca­tion being made. It is not a mat­ter of dis­cre­tion for the FWC. The FW Act man­dates it. 

While, as part of its process, the FWC care­ful­ly con­sid­ers the indi­vid­ual cir­cum­stances before deter­min­ing the path it will adopt in deal­ing with a mat­ter, as an ini­tial step the FWC will usu­al­ly seek to con­cil­i­ate and will progress to this stage much faster than a com­pa­ra­ble sex­u­al harass­ment appli­ca­tion to the AHRC. 

Fur­ther, the FWC can con­duct a hear­ing rel­a­tive­ly quick­ly and make bind­ing orders against the per­pe­tra­tor, the employ­er or both to address the con­duct in ques­tion, with­out the need to ini­ti­ate a for­mal court process with the atten­dant expense, risk and time such pro­ceed­ings almost inevitably entail. 

The orders made by the FWC in these mat­ters are direct­ed at address­ing the ongo­ing risk of the bul­ly­ing con​duct​.to the vic­tim. They are prac­ti­cal in nature and some­times high­ly pre­scrip­tive, con­sti­tut­ing a sig­nif­i­cant incur­sion into con­ven­tion­al man­age­ment pre­rog­a­tive. As not­ed in the FWC bench­book, orders that have been made in var­i­ous mat­ters include: work­ers not mak­ing con­tact with each oth­er, only mak­ing con­tact via email dur­ing spe­cif­ic times, not attend­ing cer­tain premis­es, not den­i­grat­ing or humil­i­at­ing one anoth­er and behav­ing in a way that is rea­son­able and pro­fes­sion­al, and refrain­ing from mak­ing writ­ten and/​or oral state­ments to each oth­er or oth­ers that are abu­sive, offen­sive, or disparaging. 

The FWC has broad pow­ers in respect of the orders it can make. Those pow­ers would enable the tri­bunal to fash­ion orders to address the risk of ongo­ing sex­u­al harass­ment. The juris­dic­tion is also pred­i­cat­ed on the com­plainant remain­ing in employ­ment and being pro­tect­ed, rather than being left to fend for them­selves in an unfet­tered hos­tile envi­ron­ment or resign. 

As such, the anti-bul­ly­ing juris­dic­tion of the FWC could be used to address many sex­u­al harass­ment mat­ters. It will, as a gen­er­al obser­va­tion, be faster, less expen­sive and of greater assis­tance in enabling a com­plainant to safe­ly remain in employment. 

A Solu­tion with Limitations

It does, how­ev­er, have sig­nif­i­cant lim­i­ta­tions for those pur­su­ing sex­u­al harass­ment claims. 

First, as not­ed above, the anti-bul­ly­ing juris­dic­tion is direct­ed at address­ing ongo­ing risk in an employ­ment rela­tion­ship. The focus is on pre­vent­ing future bul­ly­ing con­duct rather than pro­vid­ing a rem­e­dy for past con­duct. As such, if the com­plainant in a sex­u­al harass­ment mat­ter has left employ­ment the FWC will not make orders as the risk to the com­plainant in the work­place no longer exists. Once the employ­ment ends so does the anti-bul­ly­ing juris­dic­tion of the FWC. 

Anoth­er sig­nif­i­cant lim­i­ta­tion in anti-bul­ly­ing mat­ters, con­sis­tent with the focus on pre­vent­ing future bul­ly­ing con­duct, is that the FWC can­not make orders for com­pen­sa­tion. A com­plainant seek­ing an award of dam­ages would need to pur­sue the AHRC path (through to either the Fed­er­al Cir­cuit Court or Fed­er­al Court giv­en that the AHRC can only con­cil­i­ate mat­ters, not make bind­ing orders). That said, some bul­ly­ing mat­ters resolve in the FWC by an employ­er pay­ing a set­tle­ment sum to the affect­ed employ­ee (usu­al­ly as part of a nego­ti­at­ed exit). 

There is also a pos­si­bil­i­ty that if a sex­u­al harass­ment mat­ter is dealt with as a bul­ly­ing mat­ter in the FWC, and the com­plainant sub­se­quent­ly files a com­plaint with the AHRC, the Pres­i­dent of the AHRC may, pur­suant to sec­tion 46PH of the Aus­tralian Human Rights Com­mis­sion Act 1986 (Cth), ter­mi­nate the com­plaint on the ground that anoth­er rem­e­dy has been sought in rela­tion to the sub­ject mat­ter of the com­plaint and the Pres­i­dent is sat­is­fied that the sub­ject mat­ter of the com­plaint has been ade­quate­ly dealt with. The com­plainant would then require the leave of the court for the mat­ter to pro­ceed to hearing. 

Some Final Thoughts

Usu­al­ly for arti­cles like this the dis­claimer that it does not con­sti­tute legal advice appears in fine print at the end. For the sake of abun­dant cau­tion, legal guid­ance should be sought on the best approach and strat­e­gy for any giv­en sex­u­al harass­ment case. Much will depend on the spe­cif­ic fac­tu­al matrix of the mat­ter and the objec­tives of the complainant. 

Final­ly, the issue of reform of process­es deal­ing with sex­u­al harass­ment com­plaints is beyond the scope of this arti­cle. The pos­si­bil­i­ty of using the anti-bul­ly­ing juris­dic­tion for sex­u­al harass­ment mat­ters should not be con­strued as an argu­ment against con­fer­ring the FWC with a bespoke sex­u­al harass­ment juris­dic­tion. When the AHRC inquiry gets under­way in earnest it is high­ly like­ly there will be much com­men­tary on the mer­its of any such proposal.