Michael Byrnes (Partner) of SWAAB
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 conduct.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.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.
This article first appeared on the SWAAB website and has been reproduced with permission.