If the sexual harassment dispute is not resolved

After a Member conference, if the Commission Member believes that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Member must issue a certificate that says so.

The Member must also tell the parties if they think arbitration or proceeding to court would not be likely to succeed.

When they receive the certificate the applicant (aggrieved person), or their union or employer association, can:

• agree with at least one respondent that a Commission Member should arbitrate the dispute between those parties (consent arbitration), or
• take the case to court, or
• decide not to go any further with the dispute.

Our role ends when the certificate is issued, unless parties agree to consent arbitration.

When consent arbitration can happen

A Commission Member can only arbitrate a sexual harassment dispute if at least one applicant and one respondent to the dispute has agreed to this.

The parties who agree must tell us jointly (together) that they agree to consent arbitration. They must notify us by each signing and lodging a Form F78 – Notice of agreement to consent arbitration of a sexual harassment dispute.

The notification forms:

• must be sent to us within 60 days after the date the certificate was issued (in some cases we may give the parties more time), and
• must be signed by each party who agrees to consent arbitration.

Consent arbitration can only happen between the parties who agree to this process.

If not all of the parties consent to arbitration, we will remove the people who do not consent from the case. We will tell them we have removed them. People removed from the case will not be involved in the consent arbitration and it will not be binding (legally enforceable) on them.

Time limit for notifying us

The people agreeing to consent arbitration must send us their form to notify us of their consent within 60 days after the date we issued a certificate in the original case.

In some cases we may give the parties more time.

How consent arbitration happens

Consent arbitration will be held by a Commission Member at a determinative conference or hearing.

Outcomes

The case will end if the matter settles or when the Member makes a binding (legally enforceable) decision based on the evidence in the case. This may include making an order requiring parties to do something. A Member can also give (express) their opinion.

Where an application is granted, the types of orders that may be made include:

• payment of compensation to the applicant(s) in relation to the dispute
• payment of an amount to the applicant(s) for money lost in relation to the dispute, or
• requiring the performance of any reasonable act or course of conduct to redress (repair) loss or damage suffered by the applicant(s) in relation to the dispute.

The Member may also express an opinion, including that:

• a respondent has sexually harassed one or more applicant(s)
• a respondent has contravened the prohibition (broken the law) on sexual harassment through the vicarious liability provisions (when the employer or principal is held responsible for the action of their employee)
• it would be inappropriate for any further action to be taken.

The Member may make a decision or order as a result of a consent arbitration.

If the parties think there has been an error, they can ask for permission to appeal the decision or order. See Reasons you may appeal a decision or order.

You can only appeal if we allow the appeal to go ahead (give you permission).

Find out more about applying to appeal a decision or order.

The law changed on 6 March 2023, so the process is different if the sexual harassment happened or started before then.

In these cases a Member will decide the best process for dealing with the case. This could include a conference or a formal hearing to finalise the case. We do not issue certificates for these applications.

We will tell you what process we will follow in your case.