Understand what may happen if you cannot resolve your dispute. Use this information when the conduct started on or after 6 March 2023. If the conduct started before this date, see Sexual harassment commencing before 6 March 2023.
Following a Member conference, if the Member is satisfied that all reasonable attempts to resolve the sexual harassment dispute (other than by arbitration) have been, or are likely to be, unsuccessful, the Member must issue a certificate to this effect. The Member must also advise the parties if the Commission considers that arbitration of the dispute or proceeding to court would not have a reasonable prospect of success.
After the Commission issues the certificate, the aggrieved person, or an industrial association entitled to represent their industrial interests, can:
The Commission’s role in relation to the dispute will end with the issue of the certificate, unless parties have agreed to consent arbitration.
The Commission can arbitrate a sexual harassment dispute even if all the people involved in the case don’t agree. However, consent arbitration is only available if at least one applicant (an aggrieved person or industrial association entitled to represent them) and one respondent to the dispute have agreed to consent arbitration and have jointly notified the Commission of this. These become the notifying parties.
The notifying parties must notify the Commission of their consent to arbitration by lodging a Form F78 within 60 days after the date the certificate was issued (or such further period allowed by the Commission). All parties consenting to arbitration must sign the form. If a respondent does not consent to arbitration, the aggrieved person may decide to bring a sexual harassment court application against them.
You can use Form F78 – Notice of agreement to consent arbitration of a sexual harassment dispute.
If only some of the people involved in the case consent to arbitration, the Commission will remove the other people (those who are not a notifying party) from the dispute and will inform them of their removal. People removed from the case will not be involved in the consent arbitration as a party and it will not be binding on them.
The Commission may only arbitrate the dispute between the notifying parties. Consent arbitration will be conducted by a Commission Member through a determinative conference or hearing. The case will end if the matter settles or when the Member makes a binding decision based on the evidence before them, which may include making an order or expressing an opinion.
Where an application is granted, the types of orders that may be made include:
The Commission may also express an opinion, including that:
An aggrieved person who consents to arbitration cannot later take the case to court against a respondent who was a party to the consent arbitration.
The people agreeing to consent arbitration must notify the Commission of their consent within 60 days after the date the Commission issued a certificate in the original case, unless the Commission gives more time.
The Commission may make a decision or order as a result of a consent arbitration.
If a Member makes a decision or issues an order following a determinative conference or hearing, the people involved in the case can ask for permission to appeal the decision or order if they think there has been an error. See Reasons you may appeal a decision or order for more information.
You can only appeal if the Commission allows the appeal to go ahead (gives you permission). Find out more about applying to appeal a decision or order
We may allow a further period to lodge the Form F78 on an application made during or after that 60-day period.
If all these steps are complete, you can ask the Commission to conduct a consent arbitration.
If all these steps are not complete, you may not be able to ask the Commission to conduct a consent arbitration.
A sexual harassment court application is an application to a court for orders in relation to unlawful sexual harassment in connection with work.
Similar to the general protections jurisdiction, a person who can apply to the Commission to deal with a sexual harassment dispute can only make a sexual harassment court application if:
Other provisions related to the enforcement of civil penalties also apply to sexual harassment court applications (as well as applications for contraventions of stop sexual harassment orders and orders made by the Commission in arbitration). These include court orders such as:
A court application cannot be made against a party who has consented to arbitration (a notifying party). It can be made against a respondent to a sexual harassment dispute in the Commission who was removed from the dispute because they did not agree to consent arbitration.