Who can make an application?

Employees in the public sector and employees employed by a local government authority can make an application for a stop sexual harassment order and/or make a sexual harassment referral.

Employees in the private sector can only make an application and/or referral if their employer is not a National System Employer as defined in the Fair Work Act 2009 (Cth). This generally means that you can make an application and/or referral if your employer is unincorporated, or is not a trading corporation. For example, if your employer is a partnership, sole trader, or an association or organisation that does not substantially engage in trading or financial activities, you can make an application for a stop sexual harassment order and/or a sexual harassment referral.

It is important that, when you fill in your claim form, you be clear and precise when naming your employer. You should try to provide your employer’s correct legal name. For private sector, you should also provide the business name,  A.B.N. or A.C.N.

To help you identify your employer, check your: 

• written employment contract or agreement;
• letter of appointment;
• group certificate;
• pay slip;
• job advertisement; or
• award or industrial agreement. 

Please note that a worker (and a prospective worker), a person carrying out work in any capacity for a person conducting a business or undertaking, can make this type of application and/or referral and this includes:

• an employee
• a contractor or subcontractor
• an employee of a contractor or subcontractor
• an employee of a labour hire agency who has been assigned to work in the person's business or undertaking
• an outworker
• an apprentice or trainee
• a student gaining work experience
• a volunteer
• a person of a prescribed class
• a person conducting a business or undertaking if they are carrying out work in that business or undertaking.

How do I submit an application?

• To start an application and/or referral, you must fill in a Form 22 - Application for a Stop Sexual Harassment Order and/or a Sexual Harassment Referral, which may be lodged in the Registry of the Commission using the online lodgment system, by email, in person or by post.
• There is no time limit to make an application and/or referral, however the Commission may dismiss the application and/or referral if it has been more than 24 months since the last alleged instance of workplace sexual harassment.
• When lodging the application and/or referral, you are required to pay a filing fee. To check the fees payable, see Fees and charges. If payment of the fee will cause you significant financial hardship, you may apply to have the fee waived by contacting the Commission’s Registry. 
• You are not required to have a representative and can represent yourself in your application and/or referral. For information on representation and representing yourself, please click here. 

Who is my employer?

Your employer is not necessarily the director, owner or manager of the business. To identify your employer, one or more of the following may be helpful: 

• group certificate;
• pay slip;
• letter of appointment;
• job advertisement;
• written employment contract or agreement; and 
• performing a company or business name search.

You could also try to obtain company information from the Australian Securities and Investments Commission (ASIC) or the Department of Energy, Mines, Industry Regulation and Safety.  

What happens next?

After you have submitted your Form 22, the Commission’s Registry will:

• check the form to make sure that it is complete and contains all the required information;
• if the form is complete, send a copy of it to you for your records; and
• serve a copy of it on the respondent(s).

The Commission’s Registry may call or email you after you submit your application and/or referral to give you further information on the process, and to confirm you wish to go ahead with it. 

If the Form 22 is incomplete, it may cause delays.

The respondents have 7 days after receiving your application and/or referral to file a written response to it. The Commission will provide you with a copy of any response that is filed.

After the time for filing a response has passed, the application and/or referral will be allocated to a Commissioner and listed for a conciliation conference.

What is a conciliation conference?

A conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private, confidential and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be repeated outside the conciliation conference or used against a party later, except in some limited circumstances required by law. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim.

The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited.

Conciliation can occur over one or more conferences on one or more dates.

An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

For more information please see the Commission’s conciliation conference video by clicking here.

Possible outcomes of conciliation

• Agreement may be reached during or after the conference. If the parties do reach an agreement, it is common to put the agreement in writing. Usually, the claim is then discontinued or withdrawn.
• If agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

What is a hearing?

If the parties do not reach an agreement at the conciliation conference, then a hearing is held. A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings. 

Interlocutory or preliminary hearings 

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) hearings may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents or whether the Commission has jurisdiction to deal with the application;

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues. 

Directions hearings are similar to preliminary hearings and are designed to allow the parties and the Commission to work out:

• what the issues are that the Commission will need to decide at a final hearing;
• what steps can be taken to make sure those issues are decided in a fair and efficient way; and
• when those steps will happen.

This can include setting out a timeline for when things should occur such as discovery, or when documents are to be filed with the Commission, such as outlines of submissions or witness statements. 

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute. This is where you or your representative can present evidence to support your application.

For more information, please read the Commission's hearing fact sheet by clicking here.

For information on evidence, please read the Commission's evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission's representation fact sheet by clicking here.

Possible outcomes of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

• at the hearing, after all evidence and arguments are presented; or
• after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.   

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.