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Self-Representation Toolkit: Lodging a Sexual Harassment Dispute in the Fair Work Commission

Introduction

This is the Working Women’s Centre SA’s third instalment of our sexual harassment self-representation toolkit series. Our previous factsheets in this series are:

This factsheet will guide you through lodging a sexual harassment dispute in the Fair Work Commission (FWC). To be eligible to lodge the dispute, the sexual harassment must have occurred on or after 6 March 2023, and you have 2 years from the date the sexual harassment conduct occurred to lodge the dispute.

REMINDER: You can only make a sexual harassment claim in one jurisdiction!

Unsure of whether to make a claim in the Australian Human Rights Commission, Fair Work Commission or Equal Opportunity SA? One jurisdiction may be better than the other depending on how much time has passed since the incident, where your employer is located, etc. It is important to get legal advice before making a claim, especially if you have made or intend to make a workers compensation claim.

 

  1. Make sure you are using the correct form

The relevant form is the Form F75, which can be accessed below:

There is no fee to make this application.

 

  1. Filling out the form
  2. What are you applying for?

Select ‘by otherwise dealing with the dispute’.

If you and the person you are alleging sexual harassment against are still working together, and you are concerned you may experience more sexual harassment in the future, you can instead select ”by making a stop sexual harassment order and by otherwise dealing with the dispute”.

  1. I am applying (the Applicant) in my capacity as:

Select ‘an aggrieved person (a person who alleges they have been sexually harassed in connection with work)’.

Part 1 – About the parties and what happened

  1. About the aggrieved person

Insert your details and select which option best describes your connection to work.

Then, skip to Question #6.

  1. About the business or undertaking

Insert details of your employer (ie the business).

  1. About the Respondent(s)

The organisation(s) and/or person(s) you are making a claim against are called ‘Respondents’ as they will be responding to your claim. This can be your employer (ie the company or business), individual manager(s) and/or the individual(s) who perpetrated the sexual harassment.

Insert the details of all the Respondents you want to include.

Then, if applicable, complete Question #8, otherwise skip to Question #9.

  1. How was the aggrieved person(s) sexually harassed?

Insert relevant details about what happened to you, including dates, names of individuals, locations, witnesses, etc, and how the sexual harassment has affected you (eg confidence, self-esteem, stress, financially, etc). Avoid long, complicated paragraphs. It is best to use headings, numbered paragraphs and dot points.

If you have a lot of information to include, you can also create a separate document to answer this section and attach it to your application. If you do this, simply write, ‘Please see the attached summary’ under this section.

Include any supporting documents that may help your application, including letters, emails, text messages, screenshots, photos, etc.

10-13. Employer policies and procedures

Answer these questions to the best of your ability.

Then, skip to Part 3 if you are not also seeking a stop sexual harassment order.

If you are also seeking a stop sexual harassment order because there is a risk the alleged perpetrator/s may sexually harass you again, complete Part 2, 15. Here, you can ask for measures to be made that would help you feel safe at work, for example, sexual harassment training and/or removing the alleged perpetrator/s from your team or immediate work area.

Part 3 – Otherwise dealing with the dispute

  1. What outcome are you seeking to settle the dispute?

Insert your preferred outcome(s). This can include: a letter of apology, compensation for financial losses you experienced because of the harassment (eg lost wages, medical expenses), compensation for stress, suffering or humiliation (ie non-economic loss), an agreement for the Respondent(s) to undergo relevant training or to change their policies and procedures.

Part 4 – Is assistance required to access the Commission’s services?

17-18. Answer accordingly.

Page 19 – Lodging the application

Insert your details and sign the form. A digital signature is fine for this.

You can then lodge the form and the supporting documents by either:

 

  1. What happens once I submit the complaint?

After submitting the form, you should get an acknowledgement email and letter from the FWC.

The FWC will then contact the Respondents to let them know about the case. They will provide the Respondents with a copy of your complaint and any attachments you have included (with your personal contact details removed for your privacy). The FWC will ask the Respondents to respond to the application within 7 days.

The FWC will generally deal with the dispute at first instance by holding a Member conference.

 

  1. Member conference

A Member conference is a confidential meeting between the Applicant, Respondent(s) and a FWC Member. Members will help parties communicate and guide discussion by raising questions and making suggestions to assist the parties in reaching a resolution. The Member is impartial, does not take sides and cannot make any decisions.

Conferences are conducted ‘without prejudice’, which means nothing that is said in the meeting can be referred to in future proceedings if the matter does not resolve at the conference. Because the conferences are confidential, you cannot make recordings or publish information (including on social media) about what was said or done during the conference.

Tip: Mark your calendar with the conference date

You will receive an email from the FWC with details of the conference. This will include the date, time and location. Conferences can be held online, in-person or over the phone. If you have a strong preference for how the meeting should be conducted (ie you do not feel comfortable attending in person and would feel more at ease with an online or phone conference), you can indicate this preference to the FWC via email and they will take it into account.

You can also elect to have a support person present with you during the conference, like a friend or a family member.  If you would like to have a support person present, you should let the FWC know ahead of time.

It is important that you attend the conference because if you fail to attend, the Member may see this as a lack of interest in proceeding or a failure to cooperate on your part. As a result, they may decline to progress the dispute.

Preparing for the conference

  • Review your own application and the response(s) of the Respondent(s). Be prepared to address or deal with any issues raised in the response(s).
  • Prepare a statement or notes for you to read from during the conference.
  • Have a proposal ready for how you would like to resolve the matter. Think about what you might be willing to negotiate on.
  • If your conference will be held online or over the phone, make sure you will be in a quiet, private location with stable internet connection and your laptop or phone is fully charged.

During the conference

The conference will start with a joint session with you, the Respondent(s) and the FWC Member. The Member will start with an introduction and explain how the conference will proceed.

The Member will then ask the Applicant (you) to say an opening statement summarising your case. Here, you can tell your story and have an opportunity to be heard. You can talk about the effect the sexual harassment had on you. Remember to concentrate on key points and provide relevant information that will support your case. Avoid long tangents and unnecessary information.

The Member will then give the Respondent(s) and opportunity to respond. Be respectful and do not interrupt others. If a Respondent says something you disagree with, do not assume the Member agrees with them. If you disagree with a statement the Respondent/s have made, wait until they have finished speaking and then ask the Member if you can address that point in a respectful manner. If you do not feel comfortable saying this in the joint session, you will have an opportunity to speak privately with the Member after the joint session.

You can ask for a break at any time during this process.

The Member will usually close the joint session and then speak with each side privately, in separate sessions, and ask for offers on how they wish to resolve the dispute. The offers will be taken to the other side.

The Member facilitates a negotiation and may go back and forth between the parties exchanging offers several times.

If the parties reach an agreement on the resolution, the Member can assist the parties to draw up a written agreement. This is a legally binding and enforceable contract, so carefully review the terms before signing.

 

  1. What happens if the dispute is not resolved by the conference? 

If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, and are likely to be, unsuccessful, then the FWC must issue a certificate saying this. Then, there are two options available to you:

 

Option 1: Arbitration

If you and the Respondent consent (ie agree) that the dispute should remain in the FWC so the FWC can arbitrate (ie make a decision), then the parties should notify the FWC within 60 days after the certificate is issued. This process is called consent arbitration.

 

Option 2: Court application

If parties do not consent to arbitration, then the certificate allows you to take the dispute to the Federal Circuit and Family Court of Australia or the Federal Court of Australia. You must make the court application within 60 days after the certificate is issued.

 

You should seek further legal advice before starting a court case as the process can be complicated, lengthy and costly.

 

Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.  

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