Through its recent expansion of powers, the Commission can now deal with sexual harassment disputes by:
- making a stop sexual harassment order (forward-facing measure); or
- otherwise dealing with the dispute, in a similar manner to general protections disputes, with unlimited compensation orders (backward-facing measure, for conduct that occurs from 6 March 2023); or
- both (in relation to conduct that occurs from 6 March 2023).
The imposition of monetary penalties means employers are now potentially exposed, separately and distinctly from damages alone, with penalty units similar to those available in general protections claims.
An application to the Commission to deal with a sexual harassment dispute can be lodged by individual employees, or jointly, or by unions on behalf of the employee/s, and must be made within 24 months of the date of the last contravention.
Generally, following such an application being made, a mediation or conciliation will take place allowing the parties the chance to resolve the dispute. If the matter cannot be resolved at that stage, the parties can then either consent to arbitration by the Commission or, alternatively, a certificate will be issued enabling the applicant to commence proceedings in the Federal Court/Federal Circuit Court (again, much like in general protections claims).
Employers should:
- be continually closely monitoring the culture within their workplace;
- ensure their relevant workplace policy is consistent with these changes; and
- implement effective training to ensure all team members are sufficiently informed and equipped to help cultivate a friendly, inclusive environment for all.
