Mr O.G. [2025] FWC 2180 (4 August 2025)

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

Application for an order to stop sexual harassment

• [1] 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).

• [2] 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.

• [3] 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.

• [4] I have decided to dismiss the application. My reasons are set out below.

• [5] The application alleges sexual harassment at work, which is described as follows:

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"

• [6] 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'.

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

1. 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.

1. 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.

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