N.B. [2025] FWC 3456 (5 December 2025)

s.527F - Application to deal with a sexual harassment dispute

Application to deal with a sexual harassment dispute - whether Part 3-5A of the Fair Work Act 2009 applies to the dispute - course of conduct that began before 6 March 2023

• [1] On 3 September 2025, N.B. applied to deal with a sexual harassment dispute under s.527F of Part 3-5A of the Fair Work Act 2009 (Cth) (the FW Act) in relation to employment by J.W. Part 3-5A of the FW Act commenced operation on 6 March 2023. The application alleges sexual harassment by J.W. over the course of her employment as follows (together, the allegations):
  1. On or about 21 May 2020, J.W. sent an email to N.B. containing an image of a partially naked woman.
  2. On or about 17 September 2021, J.W. sent an email to N.B. containing a video of two young girls in swimwear playing billiards at his home.
  3. On or about 30 September 2022, J.W. was intoxicated and fell over. While N.B. was helping him to his feet, he grabbed her in the groin area.
  4. On or about 13 February 2023, J.W. suggested to N.B. that she sleep with another man so that he could get a discount on a concrete pour.
  5. On or about 04 April 2023, J.W. sent an email to N.B. containing an image of a partially naked woman.
  6. On or about 27 August 2023, J.W. said to N.B. that the reason she was refusing to do something for him was that she was too tired from sleeping with multiple men.
  7. On or about 04 February 2024, J.W. criticised N.B.'s people management, saying that she should 'put our more' if she wanted them to help her.
  8. On or about 14 April 2024, J.W. asked N.B. to look at his photos including multiple images of naked women.
  9. On or about 02 May 2024, while N.B. was at J.W.'s house, he invited her into his bedroom and became aggravated when she refused.

• [2] Allegations 1-4 above are no longer pressed. N.B. accepts that Part 3-5A does not apply to sexual harassment occurring before 6 March 2023.[1] The question is whether Part 3‑5A applies to allegations 5-9, which are about conduct after 6 March 2023. The answer depends on whether the alleged conduct was 'part of a course of conduct' beginning before 6 March 2023.

• [3] I have decided that the alleged sexual harassment after 6 March 2023 was part of a 'course of conduct' that began before that time. This means that Part 3-5A does not apply to the alleged conduct that forms the basis of the dispute. These are my reasons.

• [4] Clause 60(3) of Schedule 1 of the FW Act states:

"(3) Subsection 527D(1) does not apply in relation to sexual harassment of a worker if the sexual harassment is part of a course of conduct that begins before the commencement of Division 1 of Part 8 of Schedule 1 to the amending Act."

• [5] The Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 describes the effect of the clause 60 in this way:

"1136. The new prohibition on sexual harassment in connection with work would apply to sexual harassment that occurs on and after the commencement of Division 1 of Part 8 of Schedule 1 to the Bill. To ensure a person who is sexually harassed before the commencement of that Division can access a remedy, clause 60 would preserve the operation of the existing stop sexual harassment order framework in Part 6-4B of the FW Act in relation to sexual harassment perpetrated before the commencement of the Division. A person could also seek a stop sexual harassment order after the commencement of Division 1 of Part 8 of Schedule 1 to the Bill in relation to sexual harassment that occurs after the commencement of that Division if the harassment formed part of a course of conduct that began before the commencement of the Division.

1137. Clause 60 would also preserve the operation of stop sexual harassment orders made before the commencement of Division 1 of Part 8 of Schedule 1 to the Bill."

• [6] It is not in dispute that the Commission's powers to deal with a dispute and to issue a certificate under s.527R can only be exercised if a valid application under s.527F has been made. N.B. submits however that the Commission need not (and ought not) decide whether it has a valid application before it before exercising its powers under s.527R, because the transitional provisions only operate upon a positive finding that sexual harassment has occurred. At the time of application, no finding will have been made. The Commission can, so it is said, proceed to deal with the dispute because all that is required to enliven jurisdiction to deal with the dispute is that a relevant allegation of sexual harassment in contravention of the prohibition in s.527D(1) has been made.

• [7] This submission is rejected. In a practical sense, it asks the Commission to ignore the preserved operation of Part 6-4B and proceed on the basis that all applications under s.527F are validly made unless and until a court (or the Commission in consent arbitration) finds otherwise.

• [8] The validity of an application is a fundamental jurisdictional question. Parliament cannot have intended preserved Part 6-4B to only operate upon a finding of sexual harassment made either by the Commission or the courts. This would substantially undermine the limits on jurisdiction imposed by clause 60 of Schedule 1 to the FW Act. It would have the absurd result that sexual harassment within the scope of Part 6-4B would first need to have been the subject of proceedings brought under a legal framework that did not apply.

• [9] As the Explanatory Memorandum explains, the FW Act delineates by time the application of Part 3-5A and Part 6-4B. Part 3-5A applies to sexual harassment (which, at the time of application to the Commission, can only mean alleged sexual harassment) that occurs on or after 6 March 2023. Part 6-4B is preserved, and continues to apply, in relation to sexual harassment (and similarly to alleged sexual harassment) 'perpetrated' before that time. The intention is to ensure that those who were sexually harassed before the prohibition on sexual harassment commenced can still access a remedy in the form of an order to stop sexual harassment.

• [10] An important purpose of both Part 3-5A and Part 6-4B is to empower the Commission to use its wide range of dispute resolution functions to assist individuals alleging sexual harassment, and those responding to them. Necessarily, this involves dealing with alleged conduct rather than conduct which has been proven (at least up until the conclusion of arbitration). It is not a precondition to application that a positive finding of sexual harassment has been made. But it is necessary that the application be validly made under the provisions of the FW Act that apply to the alleged conduct.

Is the alleged sexual harassment part of a course of conduct that began before 6 March 2023?

• [11] The legal meaning of 'course of conduct' is most often considered in the industrial arena in the context of civil penalties. In the FW Act, the 'course of conduct principle' manifest in s.327A and s.557 has its origins in the criminal law. It provides for leniency in sentencing by allowing multiple contraventions of the FW Act to be treated as one to avoid double punishment for the same conduct. The principle was explained by Lord Diplock in Director of Public Prosecutions (UK) v Merriman[2] in this way:

"[w]here a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise", they should be regarded as one activity or one offence.

• [12] Other cases dealing with the meaning of 'course of conduct' in the sentencing context have described it as:
• 1. where the conduct took place within a relatively short space of time, all with the same modus operandi and objective;[3]
• 2. a continuum of acts intended to induce [a single outcome];[4]
• 3. conduct engaged in for the same purpose, and not distinct in time or place;[5]
• 4. connected instances of the working out of a single policy decision in relation to one quite small workplace, involving conduct that was similar in each case, with the same objective, and taking place within a short period of time;[6] and
• 5. where there is an interrelationship between the legal and factual elements of two or more contraventions committed by the same person, which is essentially the same contravening conduct.[7]

• [13] In these examples, a course of conduct might be found where a series of actions are taken (or not taken), each with commonality of purpose and a sufficient connection to each other, whether in time or place or otherwise, so as to be considered 'connected'.

• [14] Outside of the sentencing context, the phrase 'course of conduct' is used in the FW Act to describe when a person has been 'forced to resign' (for the purposes of an unfair dismissal or general protections application (s.386(1)(b))); whether a person has engaged in 'pattern bargaining' (so as to deny them access to protected industrial action (s.412)); to define 'scheme' for the purposes of regulated labour hire arrangements (anti-avoidance measures (s.306S; s.306SA)); and in relation to sexual harassment - to describe orders the Commission might make in consent arbitration of a sexual harassment dispute (s.527S) and to prevent the retrospective operation of the prohibition on sexual harassment in Part 3-5A (clause 60 of Schedule 1 to the FW Act).

• [15] In many of these contexts, the course of conduct principle has no direct application because there is no risk of duplication of penalty involved. Although decisions dealing with the principle can guide the meaning of 'course of conduct' where it is used in other contexts in the FW Act, it is not always helpful. Sentencing is done once the facts are known. Findings have been made as to the conduct of concern and the reasons for it. In this scenario, the question of whether there is a commonality of purpose may be readily ascertained from the facts of the case.

• [16] In the dismissal context, the Commission may be called upon to decide whether an employer has engaged in a 'course of conduct' with the purpose of bringing the employment to an end, or where termination of employment is the probable result. This requires an assessment of the whole of the relevant conduct leading to the end of an employment relationship so as to make findings about what occurred, and why, and by whom. Where a course of conduct is found, it is because the relevant conduct is connected in the sense that the same actor (the employer) acts, or fails to act[8], in relation to a person (the employee), usually with a singular purpose, over a period of time before the employment ends. The place and timing of this conduct may vary depending on the facts of each case, and commonality of purpose is not necessarily required if it can be shown the termination was the probable result of that conduct.

• [17] In the bargaining context, pattern bargaining is itself a 'course of conduct', characterised by a rigid commonality of terms proposed in at least two separate but parallel enterprise agreement negotiations. Whether the conduct has occurred, and to what end, are questions of fact to be decided at the time of considering whether the statutory definition of 'pattern bargaining' is met. If so, the conduct will be connected by commonality of actor (same bargaining representative), terms being proposed (same content), timing (simultaneous bargaining processes), and purpose (common terms across different enterprises). The conduct may occur over a period of time reflective of the bargaining process, and it may occur in many different places. In this context, commonality of purpose is a defining feature.

• [18] The situation is different again when it comes to deciding which part of the FW Act applies to a dispute about sexual harassment. At the time the decision is to be made, there are only allegations and responses. There are no findings of fact either as to conduct or its purpose. An assessment needs to be made about whether at least some of the alleged conduct crosses over the jurisdictional dividing line. The task is to characterise the alleged conduct, based on all the available information, to determine whether some or all of that conduct is part of a course of conduct that began before 6 March 2023 and continued after that time. That is, a pattern of behaviour in the nature of sexual harassment over the period to which the alleged facts relate. It may occur over either a short or a long period of time, and may involve different locations, depending on the context for the alleged conduct in each case. Because intention is not always a necessary element of sexual harassment, a commonality of purpose may not be found.

• [19] In this case, the alleged sexual harassment can be grouped into three categories:
  1. Exposing N.B. to sexually suggestive or nude images (21 May 2020, 17 September 2021, 4 April 2023 and 14 April 2024).
  2. Making comments to N.B. about her sex life and suggesting that it be deployed for the benefit of J.W. and her career (13 February 2023, 27 August 2023, 4 February 2024).
  3. Engaging in, or inviting, sex-related activity with N.B. (30 September 2022, 2 May 2024).

• [20] Taking the allegations at their highest, do they represent a pattern of behaviour capable of being characterised as sexual harassment over the four-year period to which the allegations relate? In my view, the answer is 'yes'. In each of the categories above, some of the alleged conduct occurred before 6 March 2023 and some of it occurred after that time. All the alleged conduct is said to have been engaged in by J.W. toward N.B. in the context of their work relationship and where J.W. held the balance of power over N.B. It occurred either while N.B. was at work, or in connection with her work in the broader sense, given the relatively isolated rural setting which formed the backdrop for her employment. Common to each incident is an alleged unwelcome overstepping of boundaries from professional to personal, involving the sharing of intimate or suggestive images, initiating talk about N.B.'s sex life or the more serious allegations of groping N.B and 18 months later, inviting her into the boss' bedroom and becoming aggravated when she refused.

• [21] It is true that there is some significant distance in time between each of the alleged events. Indeed, the only apparent connection in time is that each incident is said to have occurred during the period of employment. In context, I do not consider this to be conclusive as to whether the alleged conduct was a series of isolated events, or a continuing course of conduct. Relationships can and do evolve over time. Implicit in the allegations made by N.B. is that J.W. took more than a passing interest in her sex life over the course of her employment and became progressively more assertive in that regard. J.W. disputes this characterisation of the alleged conduct but does not deny that at least some of it occurred both before and after 6 March 2023.

• [22] The alleged sexual harassment described in allegations 1-4 above relates to conduct that occurred before 6 March 2023. The effect of clause 60(1)(a) of Schedule 1 to the FW Act is that Part 6‑4B of the FW Act, as it applied immediately before 6 March 2023, applies in relation to that conduct. Part 3-5A does not apply in relation to allegations 1-4.

• [23] The alleged sexual harassment described in allegations 5-9 above relates to conduct that occurred after 6 March 2023. However, it forms 'part of a course of conduct' alleged to have begun before that time (being the conduct described in allegations 1-4). Part 6‑4B of the FW Act, as it applied immediately before 6 March 2023, also applies in relation to that conduct because of clause 60(1)(b) of Schedule 1 to the FW Act. Part 3-5A does not apply in relation to allegations 5-9.

• [24] For completion, the prohibition on sexual harassment in connection with work in s.527D(1) also does not apply to any of the alleged sexual harassment (clause 60(3) of Schedule 1 to the FW Act). It follows that it was not open to N.B. to allege sexual harassment in contravention of s.527D(1) in relation to the conduct described in the application.

" Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success."

• [26] As N.B. was not entitled to apply for the Commission to deal with the dispute under s.527F of the FW Act, the application was not made in accordance with the Act.

• [27] Application SH2025/152 is dismissed under s.587(1)(a) of the Act.

[1] Fair Work Act 2009 (Cth), Schedule 1, clause 60(1)(a)

[2] [1973] AC 584 at 607, cited in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171 at [15]; see also Attorney-General v (SA) Tichy (1982) 30 SASR 84

[3] Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [15]

[4] CFMEU v Williams 191 IR 445 at 447

[5] Jordan v Mornington Inn Proprietary Limited [2007] FCA 1384

[6] [2008] FCAFC 70 (per Gyles J) at [20]

[7] Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [39]

[8] Act, s.12 (meaning of 'conduct')

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