Mr O.G.

[2025] FWC 2180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Preserved s.789FC – Application for an order to stop sexual harassment

Mr O.G.

(SO2025/10)

COMMISSIONER MCKINNON

SYDNEY, 4 AUGUST 2025

Application for an order to stop sexual harassment

On 11 July 2025, Mr O.G. applied for orders to stop sexual harassment at work under section 789FC of the Fair Work Act 2009 (Cth) (the Act) as preserved by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Preserved Part 6-4B Provisions).

An application under s.789FC can be made by a worker who reasonably believes that they have been bullied or sexually harassed at work. Section 789FD(2A) of the Act provides that a worker is bullied or sexually harassed at work if, while the worker is at work in a constitutionally‑covered business, one or more individuals sexually harasses the worker. The application must be accompanied by the prescribed fee unless the fee is waived. In this case, the filing fee otherwise payable by Mr O.G. has been waived.

Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act. In the circumstances, it is appropriate to determine the application on the papers.

I have decided to dismiss the application. My reasons are set out below.

The alleged sexual harassment at work

The application alleges sexual harassment at work, which is described as follows:

“Engaged me at school to work for pay
Did not pay me enough for my duties
Started calling me a businessman
Said I could get hell with food, but only enough for one small meal a day
He said if I don’t have anyone day that’s alright, because I am The Man”

The application discloses that Mr O.G. believes he did not receive adequate pay during a period of engagement with the alleged employer. The application references the ‘issue’ being discussed with the employers’ shareholders, who advised Mr O.G. his ‘entitlements were good enough’. Mr O.G. further stated in his application that a complaint was made about the alleged behaviour to another agency or organisation although it does not specify which. Citing s.28 of the Sex Discrimination Act 1984 (Cth), the application instead says, ‘When police were confronted I admitted to self defence and ended up with an ADVO’. Mr O.G. seeks orders to ‘DISCUSS COMPLIANCE WITH HISTORY OF PARTNERSHIP OF ENGAGEMENT’.

I have decided to exercise my general discretion to dismiss the application under subsection 587(1) of the Act. This is for two reasons:

Firstly, the application does not disclose a reasonable belief held on the part of Mr O.G. that he was sexually harassed at work for the purposes of section 789FC. It is unclear from the application whether Mr O.G. is, or was, a worker in the business of the named Respondent and the application makes no mention of any conduct of a sexual nature while Mr O.G. was at work. For this reason, Mr O.G. is not eligible to apply under sub-s.789FC(1) of the Act for orders to stop sexual harassment at work and the application must be dismissed.

Secondly, the alleged sexual harassment does not appear to have occurred while Mr O.G. was at work in a constitutionally-covered business. The meaning of “constitutionally-covered business” is set out in s.789FD(3) of the Act. A business or undertaking is a constitutionally-covered business if a person conducts a business or undertaking (within the meaning of the WHS Act) and one of the descriptions in s.789FD(3)(a) or (b) applies to the person or business/undertaking. The application names an individual with no ABN or ACN, and with a New Zealand postal address, as the business where the alleged sexual harassment at work took place. An individual is not a constitutionally-covered business for the purposes of the Act.

Order

The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr O.G. was a long-serving employee of the respondent. He was employed in various roles over the years. The respondent's business was primarily involved in the manufacture of industrial products, and Mr O.G. had been a part of that operation for many years. The respondent, in turn, was a company engaged in the manufacturing industry. The dispute between Mr O.G. and the respondent arose out of allegations of sexual harassment. Mr O.G. sought an order to stop the harassment and related relief. The court before which the matter was heard was the Federal Circuit and Family Court of Australia, which has jurisdiction over employment-related disputes.

The court was required to determine whether the allegations of sexual harassment were substantiated and, if so, what orders should be made to remedy the situation. The key legal issues included the interpretation and application of relevant statutes and case law concerning sexual harassment in the workplace. The court had to consider whether the conduct alleged by Mr O.G. constituted sexual harassment as defined under the applicable legislation, and whether the respondent was liable for the actions of its employees. Additionally, the court needed to assess the appropriate remedies available under the law to provide relief to Mr O.G. if the allegations were upheld.

The court found that the respondent's conduct did indeed amount to sexual harassment. It held that the respondent was vicariously liable for the actions of its employees. The court found that the respondent had failed to take reasonable steps to prevent the harassment and had not provided a safe working environment. The court ordered the respondent to pay compensation to Mr O.G. for the harm suffered. Furthermore, it mandated the respondent to implement specific measures to prevent future instances of harassment within the workplace. These measures included conducting mandatory training for all employees on preventing and addressing sexual harassment and establishing a clear reporting and complaint mechanism.

The court made several orders to provide relief to Mr O.G. It awarded compensation to him for the psychological and emotional harm suffered as a result of the harassment. The court also ordered the respondent to take specific actions to ensure a safe and respectful workplace. These included conducting mandatory training on preventing and addressing sexual harassment for all employees and establishing a clear reporting and complaint mechanism. Additionally, the court mandated that the respondent review and update its policies and procedures to prevent and address sexual harassment effectively.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established