WA state system stop sexual harassment and bullying provisions

A worker is bullied at work if, while the worker is at work, an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to the safety and health of the worker.

Actual harm to a worker’s health and safety is not necessary. However, there must be a demonstrated risk to the health and safety of the worker and this risk must be real.

Examples of repeated unreasonable behaviour constituting bullying at work include:

• intimidation;
• coercion;
• threats;
• humiliation;
• malicious pranks;
• physical, verbal and emotional abuse;
• harassment;
• isolation;
• ostracism;
• rumour mongering; and
• discrimination.

This does not apply to reasonable management action that is carried out in a reasonable manner.

The term while the worker is at work means carrying out work in any capacity for a person conducting a business or undertaking. This may be at a place other than the employer’s premises, and a worker may be ‘at work’ whilst engaging in an activity which is authorised or permitted by their employer e.g. attending a work Christmas party.

The use of the term individual or group of individuals is broad and includes clients or customers of the business or undertaking in which the worker works. It can include an individual who is a national system employer or employee.

A worker is sexually harassed at work if, while the worker is at work, an individual or group of individuals makes an unwelcome sexual advance or an unwelcome request for sexual favours to the worker, or engages in other unwelcome conduct of a sexual nature in relation to the worker.

Conduct of a sexual nature in relation to a worker includes:

• making to, or in the presence of, the worker, a statement of a sexual nature concerning the worker, whether by visual, oral, written or electronic communication; or
• publishing a statement of a sexual nature concerning the worker on the internet or any other form of communication.

The term while the worker is at work means carrying out work in any capacity for a person conducting a business or undertaking. This may be at a place other than the employer’s premises, and a worker may be ‘at work’ whilst engaging in an activity which is authorised or permitted by their employer e.g. attending a work Christmas party.

The use of the term individual or group of individuals is broad and includes clients or customers of the business or undertaking in which the worker works. It can include an individual who is a national system employer or employee.

A ‘worker’ can make a stop bullying or sexual harassment application to the WAIRC. A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as any of the following:

• an employee;
• a contractor or subcontractor;
• an employee of a contractor or subcontractor;
• an employee of a labour hire agency who is working in the person’s business or undertaking;
• an outworker;
• an apprentice or trainee;
• a student gaining work experience; or
• a volunteer.

A union may also make an application for an order to stop bullying or sexual harassment in relation to a member.

Person conducting a business or undertaking

A worker must be carrying out work for a ‘person conducting a business or undertaking’ (PCBU) to be covered by the stop bullying or sexual harassment provisions.

The term ‘person’ includes sole traders, partnerships, public sector bodies and incorporated and unincorporated associations.

A PCBU does not have to conduct its business for profit or gain but the term does exclude volunteer associations if they do not employ anyone. There are also other exclusions to the term PCBU.

A worker who reasonably believes that they have been bullied or sexually harassed at work may make an application to the WAIRC for a stop bullying or sexual harassment order.

A union may make a stop bullying or sexual harassment application in relation to a member.

This application must be made on the appropriate form and be accompanied by any fee prescribed by the regulations.

Visit the Western Australian Industrial Relations Commission's website for more information and to make a stop bullying or sexual harassment application.

The WAIRC must start to deal with a stop bullying or sexual harassment application within 14 days after the application is made. The WAIRC may deal with the application via conciliation, arbitration, or take other action as appropriate. The WAIRC may also dismiss an application.

The WAIRC may make a stop bullying or sexual harassment order if it is satisfied that:

• the worker has been bullied at work or sexually harassed at work; and
• there is a risk that the worker will continue to be bullied or sexually harassed at work.

The WAIRC may make any order it considers appropriate, other than an order requiring payment of compensation to a worker.

An order may be made against the person who engaged in the bullying or sexual harassment, e.g. a manager, a co-worker, a contractor, a client or a customer.

An order may also be made that applies to a person other than the individual or group who has engaged in the bullying or sexual harassment. For example, an order could be made for the workers’ employer to provide workplace bullying training to its employees, or for the applicant themselves to comply with reasonable directions of their employer.

The WAIRC will be unable to make a stop bullying or sexual harassment order if there is no demonstrated risk of continued bullying or sexual harassment. For example, where an employee’s employment has ended after making a stop bullying or sexual harassment application but before the matter is dealt with by the WAIRC.

These provisions complement obligations in the work health and safety, and discrimination laws.

The WAIRC is therefore able to deal with a stop bullying or sexual harassment application notwithstanding that the worker has made a complaint to another body, such as WorkSafe, the Equal Opportunity Commission or WorkCover.

It may also deal with an application regardless of whether or not the worker has accessed their employer’s grievance resolution processes.

A person to whom a stop bullying or sexual harassment order applies must comply with the terms of the order.

The Industrial Magistrates Court can impose a penalty of up to $13,000 in the case of an individual or $65,000 in the case of a body corporate if a person does not comply with the provisions of a stop bullying or sexual harassment order.

A person against whom an order has been issued may appeal that decision to the Full Bench of the WAIRC.

Workers who are sexually harassed may also make an application to the Fair Work Commission (FWC) for a stop sexual harassment order and/or for the FWC to otherwise deal with a dispute about sexual harassment.

The FWC can deal with disputes about sexual harassment by conciliation, mediation, or making a recommendation or expressing an opinion. The FWC may also be able to deal with the dispute by arbitration if the parties agree.

Visit the Fair Work Commission website for more information.

A person who believes they have been subjected to sexual harassment can also lodge a sexual harassment complaint in the Equal Opportunity Commission, notwithstanding an application has been made in the WAIRC or FWC.

Visit the Western Australian Industrial Relations Commission website for information on stop bullying or sexual harassment applications and orders, and to make an application under state laws.

Visit the Fair Work Commission website for information on sexual harassment applications and orders and to make an application under national system laws.

Visit the Equal Opportunity Commission website for information on making a sexual harassment complaint.

Contacting the police

If you have experienced sexual assault and feel you would like to make a complaint or report to the police, contact:

WA Police Sexual Assault Squad
Phone: 9428 1600
Email: SexAssaultSquadSMAIL@police.wa.gov.au
Website: www.police.wa.gov.au/Your-Safety/Sexual-assault