Apply for an order to stop sexual harassment

Eligibility

Sexual harassment on or after 6 March 2023

You can apply to the Fair Work Commission for an order to stop sexual harassment if you:

• are, or want to become, a worker in a business, or you are a person conducting a business
• have been sexually harassed in connection with work.
• are still working in, or connected to, the workplace where the sexual harassment took place.

Sexual harassment before 6 March 2023

You can apply to the Fair Work Commission for an order to stop sexual harassment if you:

• you are a worker in a constitutionally-covered business
• you have experienced sexually harassment at work that occurred or started before 6 March 2023
• there is a risk that the sexual harassment will happen again 
• you are still working in, or connected to, the workplace where the sexual harassment took place.

A worker includes:

• an employee
• a contractor or subcontractor
• a person employed by a labour hire company who is working at a particular business or organisation
• an outworker (people who work away from the workplace, such as at home
• an apprentice or trainee
• a work experience student, or
• a volunteer.

A constitutionally covered business includes:

• a business that is a constitutional corporation
  •  Pty Ltd company
  • foreign corporations
  • trading or financial corporations formed within the Commonwealth
• the Australian Government, for example, a Federal government department
• a Commonwealth authority, for example, the Federal Court of Australia or the Australian Federal Police
• a body corporate incorporated in a Territory
• a business or organisation conducted principally in a Territory or Commonwealth place.

Businesses that are not considered constitutionally covered businesses include: 

• sole traders and partnerships
• amateur sporting organisations
• charitable organisations, unless a significant part of their activity is selling goods or services for profit
• State governments, for example, the NSW Department of Education.

If you work for a sole trader or partnership, you can only apply to the Fair Work Commission for an order to stop bullying if your employer does business in:

• an Australian Territory, such as the Northern Territory, Jervis Bay, the Australian Capital Territory, Christmas Island and Norfolk Island, or
• a Commonwealth place, a place used by the government of Australia for public purposes, for example, airports and office blocks used by a government department.

For more information, see Constitutional corporations on the Fair Work Commission website.

Defence Force Members

The laws prohibiting sexual harassment have limited application to the Defence Force, Australia’s security agencies and the Australian Federal Police. The Fair Work Commission can’t make stop sexual harassment orders for certain members of the Defence Force.

The Fair Work Commission may dismiss an application for an order to stop sexual harassment if it relates to matters involving Australia’s defence, national security, operations of the Australian Federal Police.

If you are a member of the Australian Defence Force and you have experienced sexual harassment in the workplace, you should get legal advice about your options.

How to apply

Sexual harassment on or after 6 March 2023

If you are complaining about sexual harassment that occurred on or after 6 March 2023, you must complete:

• a Form F75 - Application for the Fair Work Commission to deal with a sexual harassment dispute.

You need to attach any supporting documents to your application.

For more information, see Apply to resolve a sexual harassment dispute (Form F75) on the Fair Work Commission website.

Sexual harassment before 6 March 2023

If you are complaining about sexual harassment that occurred before 6 March 2023, you must complete:

• Form F72A - Application for an order to stop sexual harassment that commenced prior to 6 March 2023.

You need to attach any supporting documents to your application.

For more information, see Apply for an order to stop sexual harassment that started before 6 March 2023 (Form F72A) on the Fair Work Commission website.

Lodging your completed form

You can lodge your completed form:

• by email, to absh@fwc.gov.au, or
• by post
• in person at the Sydney office – there is no counter at the Newcastle office for you to submit documents.

You should post your completed form to:

Fair Work Commission,

Level 11, Terrace Tower

80 William Street

East Sydney, NSW, 2011.

If you are lodging your application by post, you should make a copy of your completed form before you post it.

You must pay a fee when you lodge your application.

If you are lodging your application by email or post, don’t fill in credit card details on the form. A Commission officer will contact you about payment, within three business days from the date of lodgment. 

If you are experiencing serious financial hardship, you can ask for a fee waiver. You will need to complete a Form F80 - Waiver of application fee. You need to lodge your completed form with your application.

For more information, see Fees and costs on the Fair Work Commission website.

You don’t need to get your signature witnessed by an authorised witness.

Once your application is received

The Fair Work Commission will check the application and will contact you to explain the process.

The Commission will serve (send) a copy of the application on:

• your employer
• any individuals at work who you say have bullied or sexually harassed you
• the employer of the person(s) who bullied or sexually harassed you, if this person is not your employer.

The Commission will contact the parties named in the application. The respondent to the application will need to respond within seven days.

Following this, the Commission will gather information about the application and can either refer the case to conciliation (also called a conference) or a hearing.

The Commission may join other parties to the dispute if there are other aggrieved persons.

If there is a jurisdictional issue raised by your employer, for example, an argument that the Commission does not have power to deal with the issue, the Commission may call you and your employer to appear before the Commission so that it can make a decision about whether to go ahead.

For more information about sexual harassment, see How we deal with sexual harassment cases on the Fair Work Commission website. 

Going to conciliation

If you apply to the Fair Work Commission for an order to stop sexual harassment, you will be referred to conciliation (also called a conference).

The conciliation is voluntary. You and your employer can choose whether to attend. Conciliation will only happen if you both agree.

If the conciliation goes ahead, the Commission will provide an independent conciliator to help you and your employer:

• identify the issues in dispute, and
• reach an agreement to resolve the issues.

The conciliation process is confidential and is conducted in private.

During the conciliation, the conciliator can make recommendations and express their opinion, however, they decide how your case should proceed if it is not resolved.

If you or your employer do not want to go to, or you can't reach an agreement at, conciliation, your application will be listed for a hearing.

For more information, see Conciliation for bullying at work on the Fair Work Commission website.

Going to the hearing

Before your case goes to a hearing, a Member from the Fair Work Commission will usually call you and your employer together for a preliminary conference to make directions about how the case will go ahead.

At the preliminary conference the Member may decide to:

• try and resolve the matter by conciliation on the day or on another day
• make consent orders, if you and the other party reach an agreement at conciliation
• make orders for either you or your employer to attend the Commission
• make a direction for the case to go to a final hearing
• make interim orders, for example, stopping your employer recruiting for your position.

If your case goes to a final hearing at the Fair Work Commission, you and your employer will have to prepare your evidence and make submissions (arguments) about your case before the Member.

Hearings are usually open to the public, but the Commission can make confidentiality orders in some cases. 

If you are not sure how to prepare for the final hearing, you should get legal advice.   

The decision

Following the hearing, the Member will either:

• dismiss your application, or
• make orders to prevent sexual harassment.

The Fair Work Commission can make any orders it considers appropriate to prevent you from being sexually harassed, including orders that:

• persons must stop a certain behaviour
• persons must comply with your employers sexual harassment policy
• your employer must provide information and additional support and training to workers
• your employer must review their anti-sexual harassment policy.

For more information, see Outcomes on the Fair Work Commission website.

The Fair Work Commission can't order your employer or another person to pay you compensation for being sexually harassed.

If you want to make a claim for compensation, for example, if you suffered an injury as a result of sexual harassment, there may be other legal options available to you. You should get legal advice about your situation.

The Fair Work Commission has the same powers to order costs in anti-bullying applications as in other applications.

For more information, see Costs on the Fair Work Commission website.

Appeals

If you the Commission doesn’t grant an order to stop sexual harassment, you may be able appeal the decision within 21 days, with the Commissions permission, to the Full Bench of the Fair Work Commission.

The Full Bench of the Commission: 

• must allow the appeal if it is in the public interest to do so, or
• can allow the appeal if there is a mistake of law or fact in the original decision.

If your employer is unhappy with the decision of the Fair Work Commission, they may appeal.

If the Commission hears an appeal, it can stay (stop) the operation of an order until the appeal is finalised. A stay order can be made on any terms and conditions that the Commission considers appropriate.

For more information, see Appeal a decision or order on the Fair Work Commission website.

Before you want to file an appeal, you should get legal advice.  

Enforcing an order

Apply to court

If your employer or any other person is not complying with an order to stop sexual harassment, you may be able to apply to the Federal Court of Australia or Federal Circuit and Family Court of Australia for an order that the person must pay a financial penalty. This type of application is called an application for breach of a civil remedy provision.

You must apply within six years from the breach of the order.

The court can make orders, including:

• an injunction, or interim injunction, to stop the breach
• an order awarding compensation to a person for loss they have suffered because of the breach
• a financial penalty.

Before you apply to the court, you should get legal advice. If your application is unsuccessful, you may be ordered to pay your employer’s legal costs.

For more information, see Enforcement on the Fair Work Commission website.

Complain to the Fair Work Ombudsman

The Fair Work Ombudsman may be able to take action against someone who doesn’t comply with an order to stop sexual harassment made by the Fair Work Commission.

For more information, see Making a complaint about workplace sexual harassment on the Fair Work Ombudsman website.