The Fair Work Commission's ('FWC') anti-sexual harassment jurisdiction commenced on 11 November 2021. Section 789FF of the Fair Work Act 2009 (Cth) ('FWA') provides that the FWC may make orders to stop bullying or sexual harassment in a workplace if the FWC is satisfied that:
- the worker has been bullied at work by an individual or a group of individuals, and there is a risk that the bullying will continue to occur (FWA s 789FF(b)(i)); and/ or
- the worker has been sexually harassed at work by one or more individuals, and there is a risk that the sexual harassment will continue to occur (FWA s 789FF(b)(ii)).
In accordance with section 789FC(1) of the FWA, a worker who reasonably believes that he or she has been bullied or sexually harassed at work may apply to the FWC for an order. Under the FWA a 'worker' is defined as 'an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer' (FWA s 789FC).
The decision of THDL [2021] FWC 6692
In the FWC's decision in THDL [2021] FWC 6692, Commissioner Yilmaz dismissed an application for a FWC order to stop bullying and sexual harassment by ruling that the application had no reasonable prospect of success (FWA s 587 (1)(c)).
On 16 November 2021, THDL applied to the FWC alleging that they had been sexually assaulted by two individuals employed by a neighbouring business in the same warehouse complex.
Findings
The FWC was not required to make a determination on whether or not THDL had been sexually assaulted, but instead dismissed the application on the basis that there was no risk of future sexual harassment, an element that is required by section 789FF of the FWA. This was due to THDL no longer operating a business in the same warehouse complex, and the parties 'no longer [having] physical connectivity'.
This case demonstrates that the FWC may dismiss an application for an order to stop sexual harassment if there is no risk of future sexual harassment occurring.
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