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.
When the Commission will issue a certificate
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:
- jointly agree with at least one respondent for the Commission to arbitrate the dispute between those parties (the notifying parties), or
- proceed to court, or
- elect not to proceed further with the dispute.
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.
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:
- payment of compensation to the aggrieved person(s) in relation to the dispute
- payment of an amount to the aggrieved person(s) for remuneration lost in relation to the dispute, and
- requiring the performance of any reasonable act or course of conduct to redress loss or damage suffered by the aggrieved person(s) in relation to the dispute.
The Commission may also express an opinion, including that:
- a respondent has sexually harassed one or more aggrieved person(s)
- a respondent has contravened the prohibition on sexual harassment through the vicarious liability provisions
- it would be inappropriate for any further action to be taken.
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.
Time limits for notifying the Commission
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
Checklist for consent arbitration
An aggrieved person has asked the Commission to deal with a sexual harassment dispute (other than by arbitration)
A Commission Member has issued a certificate stating that a Member is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful
At least one aggrieved person or their industrial association agrees to consent arbitration
At least one respondent to the dispute also agrees to consent arbitration
The Commission has been sent the Form F78 within 60 days after the day the certificate was issued in relation to the dispute, or an extension of time has been requested
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.
Sexual harassment disputes – court applications
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:
- their application seeks an interim injunction, or
- a certificate has been issued by the Commission in relation to the dispute (stating that the Member is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful), and the application is made:
- within 60 days after the certificate is issued, or
- by an aggrieved person or industrial association, within 14 days after the Commission has notified them of their removal as a party to the dispute (because they have not agreed to consent arbitration), or
- such period as the court allows.
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:
- the types of orders listed in s.545 of the Fair Work Act 2009, including an order for compensation or any other order the court considers appropriate
- an order that a perpetrator or employer/principal pay a pecuniary penalty under s.546, and
- an order for costs under s.570.
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.