Industrial umpire warns new sexual harassment regime at risk

David Marin-GuzmanWorkplace correspondent
The Fair Work Commission has warned that it will be overwhelmed with claims if the Morrison government’s new anti-sexual harassment orders are introduced and has complained it has no extra funding to deal with the cases.

In a rare intervention, the commission has sought to delay the regime’s rollout under the government’s Respect@Work bill on grounds that it is expecting a large increase in applications because of the increased awareness around sexual harassment and because it fears there is a “significant risk” the jurisdiction will be compromised.

Sex Discrimination Commissioner Kate Jenkins recommended the tribunal be empowered to issue broad anti-sexual harassment orders. Paul Jeffers

However, the government has refused to delay what it says are “urgent” reforms and insists the commission has adequate funding.

The proposed regime is in response to Sex Discrimination Commissioner Kate Jenkins’ recommendation that the commission’s existing anti-bullying orders be extended to stop sexual harassment in the workplace.

Just one instance of sexual harassment would trigger the jurisdiction and the orders can be directed to employers, co-workers or workplace visitors in whatever terms the commission deems appropriate.

But the Fair Work Commission has told a Senate inquiry into the bill this week that the laws should be pushed back by at least two months as “there is a significant risk that the commission’s capacity to successfully implement the new jurisdiction and uphold the interests of vulnerable parties will be compromised”.

The expanded regime would probably involve “intensive case management and timely resolution of applications is essential to avoiding further harm”, its submission said.

‘Heightened public awareness’

Further, “the commission expects a significant increase in applications when the amendments commence, including because of heightened public awareness of workplace sexual harassment.

“Even prior to the extension of the jurisdiction to sexual harassment, the commission’s anti-bullying case managers have already anecdotally observed an increase in references to sexual harassment in recent anti-bullying applications.”

However, it had “not received any additional funding or resourcing to implement and administer the extension to the anti-bullying jurisdiction, which also limits the commission’s capacity to operationalise the amendments within a very short lead-in time”.

Labor’s industrial relations spokesman, Tony Burke, said the concerns showed the “huge gap” between what the government announced and what it delivered.

“Mr Morrison had to be dragged kicking and screaming into responding to Respect@Work. When he finally did he announced he’d do something to protect women from sexual harassment in the workplace,” Mr Burke said.

“But the Fair Work Commission has now made it clear: Mr Morrison has failed to actually deliver the necessary funding to make sure complaints can be properly dealt with.”

A spokesman for Industrial Relations Minister Michaelia Cash said the bill was introduced “as a matter of urgency to strengthen national laws to better prevent and respond to sexual harassment and discrimination in Australian workplaces”.

“Due to the need to pass this legislation in a timely manner, any delay would not be appropriate,” she said.

“The government believes the FWC is adequately funded to perform its duties. We will continue to monitor its output after the passage of this legislation and will consider additional funding if and when necessary.”

She said the government had made clear its intention to pass the legislation as early as March this year.

Employers have been supportive of the proposed new orders, with Australian Industry Group saying they are “a genuine alternative” to lengthier legal proceedings tied to monetary compensation.

“Such litigation generally either results in a breakdown of the employment relationship or occurs after employment has ended.”