Your cart is empty.

Making a complaint of sexual harassment – legal options

Please note that this is general information and may not be relevant to your particular matter. 

 

This fact sheet sets out different options for making a formal complaint.

 

If you have been sexually harassed at work, we encourage you to call us and make an appointment to speak with one of our lawyers.

 

What is sexual harassment?

You are being sexually harassed if you face:

  • Unwelcome sexual advances,
  • Unwelcome requests for sexual favours,
  • Unwelcome conduct of a sexual nature.

The concept for sexual harassment is broad. However, if you are feeling intimidated, humiliated, or offended by inappropriate sexual conduct in connection with the workplace, this is sexual harassment.[1]

Note: This can include a one-off statement or a profession of love, said to you or written to you.

[1] Sex Discrimination Act 1984 S 28A (1).

You may like to read our summaries of sexual harassment cases that have gone to court, to guide you on possible outcomes for different types of conduct.

 

Complaint of sexual harassment – Equal Opportunity Commission (SA) or Australian Human Rights Commission (Cth)

 

There are two different Commissions in which you can lodge a complaint of sexual harassment – the Equal Opportunity Commission deals with complaints under South Australian legislation, and the Human Rights Commission deals with federal legislation.

It is important to seek advice on which Commission best suits your matter. Differences between the two jurisdictions include:

  • Differences in the wording of State and Federal legislation means that one might be better suited to your facts than the other.
  • There are different time limits to make a complaint (see below)
  • Differences in the complaint process – such as the time it will take to schedule a date for conciliation.
  • How you can appeal your claim, should it be rejected or unsuccessful in the respective Commission.

Call us and speak to one of our lawyers to discuss which jurisdiction is best for your particular circumstance. The two Commissions are summarised below.

 

 

Equal Opportunity Commission (SA)

The Equal Opportunity Commission is the South Australian jurisdiction and handles complaints made under State legislation, being the Equal Opportunity Act 1984 (SA).

Timeframes

You have 12 months to make a sexual harassment complaint in the Equal Opportunity Commission (EOC).[1] This complaint can be made by filling in and filing a form with the EOC.

https://www.equalopportunity.sa.gov.au/complaints/making-a-complaint

Process

Once the EOC receives your complaint, they will assess it to see if it is covered by the Equal Opportunity Act 1984 (SA). They may seek further information from you, or the other party, before accepting or declining your complaint.

If your complaint is accepted, it will be allocated to a Conciliation Officer and will proceed to conciliation.

If it is declined by the Commission, you will receive a letter explaining the decision. Your complaint may be referred to the South Australian Civil and Administrative Tribunal.

For more information, see the Equal Opportunity Commission website:

https://www.equalopportunity.sa.gov.au/complaints/complaint-process

Compensation 

You can seek compensation in this jurisdiction.  

 

 

Complaint of sexual harassment – Australian Human Rights Commission (Cth)

You have 24 months to make a claim in the Australian Human Rights Commission (AHRC).[2] The complaint can be made via the online form or by filling in and filing the form below.

https://humanrights.gov.au/complaints/make-complaint

Process

Once you have lodged your complaint, it will be assessed. The other party will receive a copy of your complaint. The Commission will investigate and/or conciliate your complaint.

If your complaint is terminated, you may be able to take your complaint to the Federal Circuit Court or the Federal Court of Australia. The application to the court must be made within 60 days of the date your complaint is terminated.

Compensation 

You can seek compensation in this jurisdiction.  

 

 

Other options

Worker’s Compensation

Experiencing sexual harassment in the workplace can often lead to a psychological injury.
Read more about making a claim for worker’s compensation in our separate fact sheet:

Sexual Harassment – should I make a WC claim fact sheet

 

 

SafeWork SA

Your employer has a duty to make sure your workplace is safe. If you are experiencing sexual harassment in your workplace, and this has impacted on your mental health, you can make a complaint. This is known as a Psychological Risk Complaint.

It is important that you document your experiences, as you will need to provide specific details about the incidents that you have experienced in your complaint. This must include the date(s), time(s) and location(s) of the incident(s).

https://www.safework.sa.gov.au/__data/assets/pdf_file/0009/140103/Psychological-Risk-Complaint-Form.pdf

Compensation 

You cannot claim any compensation through this process

 

Stop Sexual Harassment Order – Fair Work Commission (Cth)

In November 2021, changes were made to the Fair Work Act 2009 (Cth) in response to the Respect@Work Report.

These changes were intended to create an accessible, fast moving, cost effective and informal way to address the increasing issue of sexual harassment in the workplace.

The Stop Sexual Harassment Order allows the Fair Work Commission to make an order under s789FC of the Fair Work Act 2009 (Cth).

If you are a worker who is being sexually harassed at work by a colleague, volunteer, or visitor to your workplace, you can make an application to the Fair Work Commission. As the purpose of the order is to prevent future instances of sexual harassment, it is an essential requirement that you are still employed at the time you make the application.

It is also important to note that a Stop Sexual Harassment Order cannot fire or dismiss a sexual harassment perpetrator or award you with any compensation.

 

Eligibility Criteria

To be eligible to make a Stop Sexual Harassment application you must be a worker in a ‘constitutionally covered business’.

Who is considered a worker?[4]
  • Employee
  • Contractor
  • Subcontractor
  • Outworker
  • Apprentice
  • Trainee
  • Student gaining work experience
  • Volunteers
Who cannot apply for a Stop Sexual Harassment Order?
  • Members of the Defence Force.
  • People who are not workers; and
  • Sole traders, partnerships, and some state government employees.
  • People who do not work in a ‘constitutionally covered business’
What is a constitutionally covered business?[5]

To be considered a ‘constitutionally covered business’, the person or corporation must be either:

  • A constitutional corporation, or
  • The Commonwealth, or
  • A Commonwealth authority, or
  • A body corporate incorporated in a Territory, or
  • A business or undertaking conducted principally in a Territory or Commonwealth place.

State public schools, foreign government ministries and some local government employers with incidental trading activities.

The Process

Detailed below are the stages to making a Stop Sexual Harassment Order application.

  1. Lodging your application

The correct form is Fair Work Commission Form F72. This can be accessed on the Fair Work Commission website.

https://www.fwc.gov.au/form/apply-stop-workplace-bullying-form-f72

A Stop Sexual Harassment Order cannot result in reinstatement or the payment of money (compensation). This course of action is for employees who are being sexually harassed at work and want to continue working, but do so in a safe environment, free from sexual harassment.

  1. Application is allocated to Case management team

At this point the Case Management team will review your application. They will look at whether you’ve completed the application correctly and confirm whether you want to proceed with your application.

  1. Application is served by the FWC

At this point the FWC will serve your employer, and the person you have named in the application with your application.

  1. Application is assigned

After your application has been served on your employer your matter will be allocated to a conciliation.

  1. Staff Conciliation

At this stage you and your employer will negotiate an outcome that you desire to continue your employment in a safe environment, free from sexual harassment.

If you resolve your matter at this stage, and there is no need to continue with a Stop Sexual Harassment Order, your matter will be considered resolved and it will discontinue.

  1. Conference

If your matter is not resolved at conciliation, it will be assigned to a Member of the Commission for a conference. At this stage there will be an opportunity to negotiate to resolve the matter.

If the matter is not resolved at the conference stage, it will go to a hearing.

  1. Hearing

The hearing stage is more formal. It will give you and the other party the opportunity to present evidence on the matter.

The hearing will result with either your application being dismissed, or your application being determined.

  1. Determination

A Stop Sexual Harassment Order will either be made, or the Commission will decline to make an order.

You can appeal this decision by leave of Full Bench.

Compensation 

You cannot claim any compensation through this process.

 

Recent changes to legislation

The Government has now legislated recommendations put forward in The Respect@Work Report. This report was based on a national inquiry into sexual harassment in Australian workplaces.

The Fair Work Act has been amended to include a prohibition on sexual harassment in connection with work. It increases protections for workers, including employees, work experience students, volunteers, future workers and anyone conducting a business or undertaking in the workplace. The protection won’t apply to sexual harassment of a worker that starts before 6 March 2023.

There is now also a positive duty on employers to prevent sexual harassment. A person or company will be liable for sexual harassment committed by one of their employees, or agents, unless they can prove that they took all reasonable steps to prevent it. You will also be able to make a joint application with other workers, for example, if one person at your workplace has harassed both you and your co-workers.

 

 

New Fair Work Commission jurisdiction – from 6 March 2023

These changes include a new dispute resolution process which will allow the Fair Work Commission to deal with disputes through conciliation or mediation. If a dispute cannot be resolved, and the parties consent, the Commission can settle the dispute and make orders, including orders for compensation.

If the dispute cannot be resolved by the Commission, you will be able to pursue civil proceedings through to the Federal Court or Federal Circuit and Family Court of Australia, within 60 days of the Fair Work Commission issuing a certificate confirming that your matter has not been resolved.

These changes mean that you have the option to pursue a complaint of sexual harassment through the Fair Work Commission, as well as the AHRC and EOC jurisdictions. You also still have the existing option to pursue the Stop Sexual Harassment Order in the Fair Work Commission.

These new powers of the Fair Work Commission will come into effect on 6 March 2023.

 

 

 

[1] Equal Opportunity Act 1984 (SA) s 93(2).

[2] Australian Human Rights Commission Act 1986 (Cth) s 46PH.

[3] Sex Discrimination Act 1984 S 28A (1).

[4] Fair Work Act 2009 (Cth) s 789FC.

[5] Fair Work Commission, Orders to Stop Sexual Harassment Bench book, 11 October 2021, p 35

Orders to stop sexual harassment bench book (fwc.gov.au)

If you need to make a quick escape...

Click this ESC button if you need to hide your window. It will close this website and take you to the weather.