[2026] FWCFB 139 The attached document replaces the document previously issued with the above code on 8 June 2026. • Inserting square brackets on MNC. • Correcting punctuation typo in paragraph 33. Associate to Vice President Asbury Dated 10 June 2026 1 Fair Work Act 2009 s.604—Appeal of decision Natalie Ann Bowley v John Victor Weymouth, John Victor Weymouth (C2025/13132) VICE PRESIDENT ASBURY VICE PRESIDENT GIBIAN DEPUTY PRESIDENT CROSS BRISBANE, 8 JUNE 2026 Appeal against decision of Commissioner McKinnon made on 5 December 2025 at Sydney in Matter Number SH2025/152 – Application purportedly made under s 527F(1) of the Fair Work Act 2009 (Cth) for the Commission to deal with a sexual harassment dispute – Whether valid application made – Transitional provisions provide that prohibition on sexual harassment does not apply to conduct which is part of a course of conduct that began before the commencement of Part 3-5A– Sufficient for application to allege that person was sexually harassed in contravention of Part 3-5A – Not necessary for the Commission to determine whether later alleged incidents of sexual harassment in fact form part of a course of conduct – Permission to appeal granted – Appeal allowed. Introduction and background [1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) enacted a new Part 3-5A of the Fair Work Act 2009 (Cth) (the FW Act) to address work-related sexual harassment. The provisions seek to ‘positively engage the rights of women in work by providing a broad protection against sexual harassment in connection with work’ and to implement recommendation 28 of the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces.1 Part 3-5A commenced on 6 March 2023. [2] Part 3-5A contains, in s 527D(1), a new prohibition on sexual harassment in connection with work. The section is a civil remedy provision, contravention of which potentially attracts a pecuniary penalty. Section 527F(1) provides that a person who ‘alleges they have been sexually harassed in contravention of [s 527D]’ may apply for the Commission to deal with the dispute. The application may be for the Commission to deal with the dispute by making a ‘stop sexual harassment order’ or to deal with the dispute other than by arbitration. If the dispute is dealt with other than by arbitration, a certificate must be issued if the dispute is not resolved which then permits a sexual harassment court application to be made. [3] The present appeal raises an important question concerning the transitional provisions associated with the enactment of Part 3-5A. In short, clause 60 of Schedule 1 to the FW Act, provides that the preceding provisions providing for the Commission to make stop sexual [2026] FWCFB 139 DECISION [2026] FWCFB 139 2 harassment orders, previously found in Part 6-4B, continue to apply to the sexual harassment of a worker at work before 6 March 2023 and the sexual harassment of a worker at work on and before 6 March 2023 if the sexual harassment is part of a ‘course of conduct’ that began before that date. The question is whether the Commission can dismiss an application purportedly made under s 527F on the basis that it alleges contraventions which appear to involve a course of conduct commencing prior to 6 March 2023. [4] The issue arose in the following way. On 3 September 2025, Natalie Bowley filed an application for the Commission to deal with a dispute under Part 3-5A. The form used by Ms Bowley is entitled ‘Form F75 – Application for the FWC to deal with a sexual harassment dispute’ and records that it is the form to be used for an application under s 527F for the Commission to deal with a dispute under Part 3-5A. The application indicates that Ms Bowley did not seek a stop sexual harassment order and requested the Commission issue a certificate under s 527R(3)(a) of the FW Act so that the matter can be heard alongside a general protections court application which has been made by Ms Bowley in the Federal Court of Australia. [5] The form provides for the applicant to indicate ‘How was the aggrieved person(s) sexually harassed?’. Ms Bowley attached an annexure setting out how she said she had been sexually harassed which set out particulars of the alleged harassment. The annexure refers to incidents alleged to have occurred both before and after 6 March 2023. The particulars were as follows: 1. On or about 21 May 2020, Mr Weymouth emailed the Aggrieved Person a photo of a women bent over while walking her dog. The photo revealed the women’s naked lower half. 2. On or about 17 September 2021, Mr Weymouth emailed the Aggrieved Person a video of two (2) young girls, in swim wear, playing pool (billiards). The video was allegedly recorded using a hidden camera located at Mr Weymouth’s house at Midge Point Qld 4799. 3. On or about 30 September 2022, Mr Weymouth was intoxicated while drinking in the ‘work shed’ and requested that the Aggrieved Person drive him back to the ‘Snake House’. Mr Weymouth fell over outside of the vehicle, and the Aggrieved Person attempted to assist him to his feet. As she was assisting Mr Weymouth to his feet, Mr Weymouth grabbed the Aggrieved Person’s crotch. 4. The Aggrieved Person had previously dated a tradesman, Mr Troy Hansell, who Mr Weymouth contracted to pour a slab of concrete for a helicopter pad. On or about 13 February 2023, Mr Weymouth said to the Aggrieved Person words to the effect of “Why can’t you keep fucking him until my slab is poured so I get a good deal”. 5. On or about 04 April 2023, Mr Weymouth sent the Aggrieved Person a photo of a woman entering a helicopter. The wind generated by the helicopter’s rotor blew up the woman’s dress, revealing she was not wearing underwear. 6. On or about 27 August 2023, Mr Weymouth became aggravated when the Aggrieved Person would not show Mr Tyrone Adlington, Ms Leisa Enge, and Ms Enge’s brother around the property she managed for Mr Weymouth. Whilst he was aggravated, Mr Weymouth said to the Aggrieved Person words to the effect of “you are too tired from all the cowboys you fucked at the Dittman event”. 7. On or about 04 February 2024, Mr Weymouth called the Aggrieved Person with respect to Mr Fletcher Clayton no longer working on the farm and said words to the effect “you should put out more if you want people to help on the farm”. 8. On or about 14 April 2024, Mr Weymouth asked the Aggrieved Person into the ‘Snake House’ to show her some family photos. Amongst the photos were images of naked women. [2026] FWCFB 139 3 9. On or about 02 May 2024, the Aggrieved Person was organising lunch for the mustering contractors in Mr Weymouth’s house at the property she managed on behalf of Mr Weymouth. Whilst she was carrying out this task, Mr Weymouth asked the Aggrieved Person to go with him to his bedroom. When the Aggrieved Person refused, Mr Weymouth become aggravated. [6] Mr Weymouth filed a response to the application on 15 September 2025. The response identified that some of the alleged incidents were alleged to have occurred more than 24 months prior to the application. The response did not assert that Ms Bowley had not made a valid application. In relation to the substance of the allegations, Mr Weymouth denied engaging in sexual harassment as alleged by Ms Bowley and either denied that the specific events alleged by her had occurred at all or denied that they involved sexual harassment. [7] The application was allocated to a Commissioner. On the Commissioner’s own initiative, the chambers of the Commissioner sent the following message to the parties on 17 September 2025: Dear parties, SH2025/152 - Application by Natalie Ann Bowley I refer to the above matter, which has been allocated to Commissioner McKinnon. The Commissioner’s preliminary view is that the application should be dismissed because the alleged sexual harassment commenced before 6 March 2023. Part 3-5A of the Act only applies to sexual harassment that commenced or occurred on or after that date (please refer to the link below). Who can make a sexual harassment application | Fair Work Commission The parties are directed to provide their views in relation to whether the application should be dismissed by no later than 4.00pm (Sydney time) on Wednesday, 24 September 2025. [8] Submissions were filed by Ms Bowley’s solicitor on 24 September 2025 disputing that the application should be dismissed. Directions were subsequently issued for the parties to file submissions and evidence in relation to ‘whether the application can be made under Part 3-5A of the Fair Work Act 2009’. A hearing was conducted in relation to that question on 24 November 2025. No evidence was relied upon by Ms Bowley or Mr Weymouth, but both filed written submissions. [9] The Commissioner published her decision on 5 December 2025.2 The Commissioner (at [7]) rejected the submission made on behalf of Ms Bowley that the Commission was able to deal with the dispute because all that is required to enliven the jurisdiction to deal with a dispute is that a relevant allegation of sexual harassment in contravention of s 527D(1) has been made. The Commissioner asserted (at [10]) that it is necessary that the application be validly made under the provisions of the FW Act that apply to the alleged conduct. [10] The Commissioner then determined (at [20]-[21]) that, notwithstanding that there is a significant distance in time between the incidents, the allegations particularised in the application were part of one continuing ‘course of conduct’. The Commissioner concluded (at [23]-[24]) that the conduct described in allegations 5 to 9 formed ‘part of a course of conduct’ alleged to have begun before 6 March 2023 and that, as a result, Part 3-5A and the prohibition in s 527D(1) does not apply to the allegations. The Commissioner (at [27]) dismissed the [2026] FWCFB 139 4 application on the basis it had ‘not been made in accordance with [the] Act’ for the purposes of s 587(1)(a). [11] Ms Bowley seeks permission to appeal, and to appeal, from the decision of the Commissioner under s 604(1) of the FW Act. The grounds of appeal are straightforward. Ms Bowley contends that the Commissioner erred in determining that her application was not a valid application made under s 527F, in dismissing the application in circumstances in which the application was validly made under s 527F by a person entitled to apply under that provision and by failing to deal with the application as required by s 527R. [12] For the reasons which follow, permission to appeal should be granted and the appeal allowed. Ms Bowley’s application alleged that she had been sexually harassed in contravention of s 527D. Nothing more was required for there to be a valid application before the Commission. The Commissioner was required, by s 527R(1), to deal with the application (other than by arbitration). The Commissioner was not required to determine whether the alleged sexual harassment in fact constituted contraventions of s 527D(1) as a precondition to conducting a conference or issuing a certificate under s 527R(3)(a), including on the basis that the incidents alleged to have occurred after 6 March 2023 were part of a course of conduct that commenced prior to that date. Statutory provisions [13] Part 3-5A is entitled ‘Prohibiting sexual harassment in connection with work’. Division 2 of Part 3-5A and s 527D bear the same title. Section 527D(1) provides: 527D Prohibiting sexual harassment in connection with work Prohibition (1) A person (the first person) must not sexually harass another person (the second person) who is: (a) a worker in a business or undertaking; or (b) seeking to become a worker in a particular business or undertaking; or (c) a person conducting a business or undertaking; if the harassment occurs in connection with the second person being a person of the kind mentioned in paragraph (a), (b) or (c). Note: This section is a civil remedy provision (see Part 4-1). … [14] Section 527F permits an application to be made for the Commission to deal with a sexual harassment dispute. The section relevantly provides: 527F Application for the FWC to deal with a sexual harassment dispute (1) If a person (the aggrieved person) alleges they have been sexually harassed in contravention of Division 2 by one or more other persons (a respondent), a person referred to in subsection (2) may apply for the FWC to do either or both of the following to deal with the dispute: (a) make an order (a stop sexual harassment order) under section 527J; (b) otherwise deal with the dispute. [2026] FWCFB 139 5 Note 1: A person has limited ability to make a sexual harassment court application unless the FWC has dealt with the dispute as mentioned in paragraph (b) and is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful (see section 527T). Note 2: The FWC may allow an application to be amended if, for example, the applicant wishes the FWC to deal with the dispute in a way not initially applied for (see section 586). (2) The persons are as follows: (a) the aggrieved person; (b) an industrial association that is entitled to represent the industrial interests of the aggrieved person. (3) Despite paragraph (1)(a), a person referred to in subsection (2) cannot, except as provided by the regulations, apply for the FWC to make a stop sexual harassment order in relation to the dispute if the aggrieved person was a defence member (within the meaning of the Defence Force Discipline Act 1982) at the time the sexual harassment allegedly occurred. … [15] An application under s 527F(1) may involve either or both an application for the Commission to make a stop sexual harassment order or to ‘otherwise deal with the dispute’. The capacity of the Commission to make a stop sexual harassment order is found in s 527J. Section 527J(1) provides that the Commission may make a stop order if ‘an application made under section 527F includes an application for a stop sexual harassment order’ and the Commission is satisfied that the aggrieved person has been sexually harassed in contravention of Division 2 by one or more persons and there is a risk that the aggrieved person will continue to be sexually harassed in contravention of Division 2 by the person or persons. [16] The alternative manner in which the Commission may be asked to deal with a sexual harassment dispute is set out in s 527R which provides: 527R Dealing with a sexual harassment dispute (other than by arbitration) (1) If: (a) an application is made under section 527F for the FWC to deal with a dispute; and (b) the application does not consist solely of an application for a stop sexual harassment order; then the FWC must deal with the dispute (other than by arbitration). Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). (2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3). Note: For conferences, see section 592. (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; and (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 527S, or a sexual harassment court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly. [2026] FWCFB 139 6 [17] The role of the Commission, other than in a case in which a stop order is sought, is ordinarily limited to dealing with a dispute other than by arbitration. For example, a conference may be conducted at which a member of the Commission mediates or conciliates or makes a recommendation or expresses an opinion in relation to the dispute. If all reasonable steps to resolve the dispute have been, or are likely to be unsuccessful, the Commission must issue a certificate to that effect. [18] If a certificate is issued under s 527R(3)(a), the Commission may arbitrate the sexual harassment dispute under s 527S if the parties jointly notify the Commission that they agree to the arbitration. Otherwise, the dispute can be subject of a sexual harassment court application to the Federal Court or Federal Circuit and Family Court. Section 527T(1) provides that a person who is entitled to apply under s 527F for the Commission to deal with a dispute must not make a sexual harassment court application in relation to the dispute unless a certificate has been issued under s 527R(3)(a) (unless the application includes an application for an interim injunction). [19] The Commission relied on the power in s 587(1)(a) to dismiss the application. Section 587 provides: 587 Dismissing applications (1) 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. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A. (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or (b) has no reasonable prospects of success. (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application. [20] Notably, in the case of an application under s 527F which does not wholly consist of an application for a stop sexual harassment order, s 587(2) provides that the Commission cannot dismiss the application on grounds that it is frivolous or vexatious or has no reasonable prospects of success. [21] Finally, Part 13 of Schedule 1 to the FW Act contains transitional provisions relating to the amendments made by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). With respect to Part 3-5A, clause 60 of Schedule 1 provides: 60 Prohibiting sexual harassment in connection with work [2026] FWCFB 139 7 (1) Despite the amendments of Part 6-4B made by Schedule 1 to the amending Act, that Part, as in force immediately before the commencement of Division 1 of Part 8 of that Schedule, continues to apply, on and after that commencement, in relation to: (a) the sexual harassment of a worker at work before that commencement; and (b) the sexual harassment of a worker at work on or after that commencement, if the sexual harassment is part of a course of conduct that begins before that commencement. (2) Despite the repeal of subsection 789FF(1) by Schedule 1 to the amending Act, an order that was in force under that subsection immediately before the commencement of Division 1 of Part 8 of that Schedule continues in force (and may be dealt with) on and after that commencement as if that repeal had not happened. (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. [22] The critical features of clause 60 are that clause 60(1) provides that Part 6-4B, as it existed prior to the amendments, continues to apply to ‘the sexual harassment’ of a worker before the commencement of the amendments or the later sexual harassment of a worker at work if it is part of a course of conduct that begins before that commencement. Clause 60(3) then provides that s 527D(1) does not apply in relation to sexual harassment if ‘the sexual harassment is part of a course of conduct that begins before the commencement’ of the amendments. Permission to appeal [23] Ms Bowley requires permission to appeal under s 604(1) of the FW Act. Section 604(2) requires that the Commission must grant permission where it is satisfied it is in the public interest to do so. Otherwise, the Full Bench has a general discretion as to whether to grant permission to appeal. [24] We are satisfied it is in the public interest to grant permission to appeal and that, in any event, we should grant permission to appeal in exercise of the residual discretion available under s 604(1). The appeal raises a novel point in relation to recently enacted provisions of the FW Act dealing with the important issue of sexual harassment in connection with work. The question should be considered by the Full Bench. Furthermore, we have concluded that the Commissioner wrongly dismissed Ms Bowley’s application on the basis it had not been validly made. The consequence is that a certificate has not been issued under s 527R(3)(a) and Ms Bowley is unable to commence court proceedings alleging a contravention of s 527D(1) by Mr Weymouth. Permission to appeal should be granted to correct that error. Consideration of the appeal [25] In substance, a single ground of appeal is advanced by Ms Bowley. Ms Bowley contends that the Commissioner erred in finding that she had not made a valid application and in dismissing her application on that basis. The ground should be accepted. In our view, there was a valid application before the Commission because Ms Bowley alleged that she had been sexually harassed in contravention of s 527D(1). That is sufficient to give rise to a valid application under s 527F(1). It was not necessary or possible for the Commissioner to determine whether the incidents alleged by Ms Bowley gave rise to a contravention of s 527D(1), [2026] FWCFB 139 8 including whether the later alleged incidents were part of a course of conduct that began before 6 March 2023 for the purposes of clause 60(1) or (3) of Schedule 1 to the FW Act. [26] Ms Bowley advanced three, somewhat overlapping, arguments in support of her appeal. The first is that the language of clause 60(1) and (3) of Schedule 1 only operates with respect to sexual harassment that actually occurred prior to 6 March 2023 and was actually part of a course of conduct that began before that date, that clause 60(1) operates to cover only sexual harassment ‘at work’ and ‘of a worker’ which is a narrower class of conduct than that covered by Part 3-5A and that clause 60 does not provide that Part 3-5A does not apply to sexual harassment that occurred prior to 6 March 2023 or was part of a course of conduct that commenced before that date. The second is that the conduct alleged by Ms Bowley to have occurred after 6 March 2023 is capable of constituting a contravention of s 527D(1) and that a finding as to whether the conduct does not involve such a contravention because it was part of a course of conduct can only be ultimately determined in court proceedings. The third is that the only condition which must be met in order for a person to be able to apply under s 527F(1) is that the person alleges that they have been sexually harassed in contravention of Division 2 by one or more persons and that Ms Bowley did so in her application. [27] The third argument made by Ms Bowley is sufficient to resolve the appeal, although it is related to aspects of the first and second arguments. A number of considerations support the conclusion contended for by Ms Bowley. First, the only condition which must be satisfied for a person to make an application under s 527F(1) is that the person must ‘allege’ that they have been sexually harassed in contravention of Division 2 of Part 3-5A. So long as a person makes such an allegation, an application can be made for the Commission to deal with a sexual harassment dispute. The allegation might ultimately be found not to be correct. The incidents alleged to constitute sexual harassment might not have happened, the conduct involved might be found not to constitute sexual harassment or the alleged conduct which occurred after 6 March 2023 might be found to form part of a course of conduct that began before that date. That the claim might ultimately be unsuccessful does not suggest that a valid application has not been made. So long as a person alleges a contravention of s 527D(1) has taken place, a valid application has been made. [28] In this respect, s 527F(1) can be contrasted with s 365 of the FW Act. There are many similarities between the provisions which permit the Commission to deal with a sexual harassment dispute (other than by arbitration) under Part 3-5A and with a dismissal dispute under Part 3-1. However, the prerequisites for an application to be made under s 365 in relation to a general protections dispute involving dismissal are different. Section 365 provides for an application to be made to the Commission to deal with a dismissal dispute in the following terms: 365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute. [2026] FWCFB 139 9 [29] In Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, the Full Court explained that s 365 defines the persons who are entitled to make a general protections application involving dismissal and said:3 “The second observation that may be made is that s 365 contains two criteria conditioning a person’s entitlement to make an application. The first criterion is expressed in objective terms: the person has been dismissed. The second criterion is also expressed in objective terms, albeit by reference to the fact that an allegation has been made that “the dismissal” was in contravention of a provision of Pt 3-1. The word “alleges” is found in the criterion in s 365(1)(b), but not in the criterion in s 365(1)(a). In its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact.” [30] Later, the Full Court posited a rhetorical question as to what ‘the dispute’ is which can be dealt with by the Commission under s 368. The Full Court observed:4 “The answer is found in s 365 and in the opening words to s 368 itself. As observed earlier, when s 368 refers to an “application” made under s 365, it refers to an application validly made by a person entitled to make it. The text and structure of s 365 is such that there has been a dismissal in fact and that there is an allegation that the dismissal was for a prohibited reason. Construed in the context of s 365, when s 368 refers to “the dispute” it must be taken to refer to the dispute agitated by the allegation: that is, the allegation concerning the reason for the dismissal, and not an allegation of dismissal per se. It does not assist Mr Milford to show that the power under s 368 is non-determinative. We are presently concerned with an antecedent question as to whether the non-determinative powers are enlivened at all.” [31] As construed by the Full Court, s 365 contains two objective criteria conditioning the entitlement of a person to make an application under the section, namely, that the person has in fact been dismissed and that the person alleges the dismissal contravened Part 3-1.5 The first requires a determination as to whether the person has been dismissed as a matter of fact, the second requires only that the person has made an allegation of the requisite type. Section 527F(1) contains only a condition of the latter type, that is, that the person alleges that that they have been sexually harassed and that the harassment involved a contravention of Division 2 of Part 3-5A. All that is required is that such an allegation has been made in some form. [32] The requirement that a person has alleged that a contravention has occurred does not, as a condition of the validity of the application, require interrogation of the basis or merit of the allegation. In relation to s 365(b), for example, the Full Bench said in Tilers Trade Outlet (Vic) Pty Ltd v Cochrane [2023] FWCFB 170: “[23] All that is required for satisfaction of the criterion in s 365(b) of the FW Act is that there be an allegation the relevant person was dismissed in contravention of Pt 3–1 of the FW Act. On its ordinary meaning, a person alleges something if they assert it without proof. The relevant jurisdictional fact required by s 365(b) is that the allegation of a contravention of Pt 31 has been made. In satisfying itself that it has a competent application before it, the Commission is not required to undertake an assessment as to whether there have been facts pleaded which might reasonably support the allegation. Nor does it need to consider whether the allegation has any merit or is reasonably arguable, noting that s 587(2) of the FW Act prohibits the Commission from dismissing an application under s 365 on the ground that it is frivolous or vexatious or has no reasonable prospects of success.” [2026] FWCFB 139 10 [33] In our view, the same observation can be made with respect to an application for the Commission to deal with a sexual harassment dispute under s 527(1). Assessment of whether a valid application has been made under that section does not require the Commission to determine whether the facts alleged would, or would not, give rise to a contravention of s 527D(1) if ultimately established. If the Commissioner is correct that the Commission must assess, at the stage of application, whether the facts as alleged give rise to a course of conduct that commenced prior to 6 March 2023, presumably objection to the validity of an application could also be made on the basis that the facts alleged do not constitute ‘sexual harassment’ as defined in s 28A of the Sex Discrimination Act 1984 (Cth).6 We do not consider the statutory scheme contemplates such an approach, particularly in circumstances in which s 587(2) prevents the Commission dismissing an application on grounds that it does not have reasonable prospects of success. [34] We are satisfied Ms Bowley alleged in her application that she had been sexually harassed in contravention of s 527D(1). Ms Bowley used the form for an application to the Commission to deal with a sexual harassment dispute under Part 3-5A. In the application, Ms Bowley ticked a box which indicated she is an ‘aggrieved person (who alleges they have been sexually harassed in connection with work)’. When asked to explain how she was sexually harassed, Ms Bowley annexed a separate page which provided particulars of incidents of alleged sexual harassment. Incidents 5 to 9 are each alleged to have occurred after 6 March 2023. It is readily apparent that Ms Bowley alleges that she was sexually harassed in contravention of Division 2 of Part 3-5A. [35] The fact that Ms Bowley’s initial application also referred to incidents which were alleged to have occurred prior to 6 March 2023 that might conceivably found a conclusion that the incidents alleged to have occurred after 6 March 2023 were part of a course of conduct that commenced prior to that date, does not mean no allegation of a type referred to in s 527F(1) was made. Ms Bowley made such an allegation. There is no requirement for the Commission to engage in speculation when determining the validity of an application to deal with a sexual harassment dispute given the distinction between s 365 and s 527D(1) we have identified. [36] Second, it is unlikely that the Parliament intended that the validity of an application under s 527F(1) should depend on a preliminary determination by the Commission based purely on the terms of the application as to whether the matters alleged could or do give rise to sexual harassment in contravention of s 527D(1). Parliament plainly intended that the Commission adopt flexible and informal processes in dealing with sexual harassment disputes. So much is apparent from the extrinsic materials,7 and the fact that the jurisdiction is conferred on the Commission.8 It is also consistent with the usual operations of the Commission and the nature of its jurisdiction generally, that an approach characterised by technical pleading exercises in which the minute dissection of an application is required to determine whether it passes muster, is not adopted, when the legislation does not require such an approach to be taken. [37] For example, counsel for Mr Weymouth accepted that, if Ms Bowley had simply omitted reference to particulars 1 to 4 in her application, he could not have objected to its validity even if those incidents did occur and, in fact, there was a course of conduct which commenced prior to 6 March 2023. He also accepted that Ms Bowley could, leaving aside any time limit issues that might arise, simply file another application now omitting reference to the earlier alleged incidents and it would be valid. Those practical outcomes would, in our opinion, be perverse. Furthermore, the application was dismissed on the basis it was, in circumstances in which, in [2026] FWCFB 139 11 his response to the application, Mr Weymouth denied either that the events alleged to have occurred before 6 March 2023 occurred at all, or that those events constituted sexual harassment. Mr Weymouth denied engaging in sexual harassment at all, much less a course of conduct involving sexual harassment which commenced prior to 6 March 2023. On the material before the Commissioner, a possible outcome of the case was that no sexual harassment occurred before 6 March 2023, but one or more of the incidents after that date did occur. [38] Another feature of this case is the Ms Bowley applied to amend her application to remove references to events prior to 6 March 2023 and referred to s 586 of the FW Act.9 Even though the application to amend was not opposed by counsel for Mr Weymouth, it was refused by the Commissioner on the basis that the amendment invited the Commission to ‘be blind to things that have, in fact, occurred or may have in fact occurred’.10 There is no appeal from the refusal of the amendment. Nevertheless, the refusal of the amendment points to the difficulty in attempting to use the transitional provisions as a basis to determine the validity of the application. The Commissioner did not determine the validity of the application based on the case Ms Bowley sought to advance at the time of the hearing. The Commissioner appears to base her decision on what she thought had in fact occurred or might in fact have occurred. [39] Part 3-5A also introduced a civil remedy provision which attaches a penalty to conduct constituting sexual harassment in connection with work. Section 527D(1) is intended to reinforce existing protections against discriminatory behaviour by explicitly prohibiting sexual harassment.11 A penalty can only be imposed in sexual harassment court proceedings. Section 527T provides that court proceedings can only be brought if a certificate has been issued by the Commission. That did not occur because the Commissioner dismissed the application. If, in fact, Mr Weymouth sexually harassed Ms Bowley after, but not before, 6 March 2023 or the separate incidents were not in fact part of the same course of conduct, Mr Weymouth has escaped the potential for penalties to be imposed in the public interest because of the manner in which Ms Bowley drafted her initial application to the Commission. We think such an outcome is unlikely to have been intended by the Parliament. [40] Third, the language of clause 60(1)(b) and (3) of Schedule 1 to the FW Act supports the conclusion that the operation of the clause depends upon whether a worker has actually been sexually harassed on or after 6 March 2023, and the sexual harassment is part of a course of conduct which began prior to that date. Mr Weymouth submitted that the use of the preposition ‘the’ before the words ‘sexual harassment of a worker’ in clause 60(1)(a) and (b) suggests that the clause is referring to the allegations made by a worker. We do not accept that submission. The full phrase used in clause 60(1)(b), for example, is ‘Part 6-4B … continues to apply … in relation to …(b) the sexual harassment of a worker at work …’. The phrase ‘the sexual harassment of a worker’ is most naturally read as referring to a circumstance in which a worker has actually been subject of conduct amounting to sexual harassment. The same can be said in relation to the wording of clause 60(3) which refers to the application of s 527D(1) to ‘sexual harassment of a worker’. [41] We do not think it is intended that the question of whether an act of sexual harassment is part of a course of conduct be decided on the basis of the content of an application made under s 527F(1). The decision of the Commissioner contains a useful discussion of the authorities dealing with whether separate acts should be regarded as constituting part of a single course of conduct. The Commissioner referred to the statement of Lord Diplock in Director of Public Prosecutions (UK) v Merriman [1973] AC 584 at 607 that:12 [2026] FWCFB 139 12 “… [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, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment.” [42] That statement demonstrates that the assessment of whether separate acts form part of a course of conduct will commonly be a complex one. It is difficult to see how the assessment could sensibly be undertaken based purely on a brief description of the allegations of sexual harassment contained in an application without more. Ms Bowley’s application was prepared by lawyers and provides a description of nine alleged incidents. Although dates of the alleged incidents are given, the place where they occurred is not given in a number of cases and little information is provided from which context or purpose could be deduced which would necessarily inform whether the incidents were part of a course of conduct. That is not a criticism of the application. It is not envisaged that an application will provide an exhaustive account of the allegations. The difficulties likely to be encountered in determining the question at a preliminary stage supports the view, which we believe emerges from the provisions in any event, that whether alleged incidents of sexual harassment are part of a course of conduct which began before 6 March 2023 is intended to be determined as part of the resolution of relevant proceedings rather than as a precondition to there being a valid application. [43] The Revised Explanatory Memorandum does not suggest a different conclusion. The Revised Explanatory Memorandum describes the purpose of clause 60 of Schedule 1 as follows:13 “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.” [44] The Revised Explanatory Memorandum suggests no more than that a person can seek a stop order under the preserved provisions of Part 6-4B if they have been sexually harassed as part of a course of conduct that began prior to the commencements of the amendments. It does not suggest that an application alleging a contravention of s 527D(1) after 6 March 2023 is not valid because, on one view, those acts might ultimately be found to be part of a course of conduct that commenced prior to that date. [45] Fourth, Mr Weymouth submits that it is necessary for the Commission to identify at the outset whether the preserved provisions in the Part 6-4B or the provisions of the new Part 3-5A apply to a matter. If instances of sexual harassment at work took place prior to 6 March 2023 and continue as part of a course of conduct after that date, Part 6-4B continues to apply to the conduct. Otherwise, Part 3-5A applies to alleged instances of sexual harassment in connection with work after 6 March 2023. The Commissioner also believed this aspect of the statutory context compelled the conclusion that the question of which provisions apply goes to the validity of the application. The Commissioner said: [2026] FWCFB 139 13 “[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.” [46] We disagree. There are differences between the statutory regimes. However, we do not consider that this aspect of the statutory context supports the view that the question of which provisions apply must be determined at the time the application is made. It is a matter for the applicant as to how they frame their claim. If an applicant alleges contraventions of s 527D(1), a court (or the Commission in the case of a consent arbitration) will need to determine whether sexual harassment in contravention of the section occurred. If the acts of sexual harassment were part of a course of conduct which commenced before 6 March 2023, clause 60(3) of Schedule 1 means that the application will be unsuccessful. That possibility does not mean an application which alleges a contravention of s 527D(1) is not a valid application. [47] If an application is made for a stop sexual harassment order under Part 3-5A, s 527J(1)(b)(i) provides that the Commission can only make an order if it is satisfied that a person has been sexually harassed in contravention of s 527D(1). If the Commission is not satisfied that a contravention has occurred, including as a result of the operation of clause 60(3) of Schedule 1, no order can be made under s 527J(1). Again, the possibility of such an outcome does not mean the initial application was not valid or did not properly enliven the jurisdiction of the Commission. Subject to affording the parties procedural fairness, it may be possible for an application to seek a stop sexual harassment order based alternatively on Part 6-4B or Part 3-5A if there is a dispute as to whether acts of sexual harassment after 6 March 2023 are part of a course of conduct that began before that date. It is unnecessary to determine that question in the present appeal. [48] Fifth, Ms Bowley referred to the different scope of the former Part 6-4B and Part 3-5A of the FW Act. Part 6-4B only applies to sexual harassment ‘at work’ whereas Part 3-5A operates with respect to sexual harassment ‘in connection with work’. Part 6-4B operates with respect to sexual harassment of a ‘worker’ whereas Part 3-5A can also apply to a person ‘seeking to become a worker’ or a ‘person conducting a business or undertaking’. The provisions of Part 3-5A are evidently intended to have broader operation and potentially apply in a wider set of circumstances than the former Part 6-4B. We do not believe that these differences assist in answering the question raised in the present appeal. The question in this matter is simply whether there was a valid application. [49] Contrary to the submissions advanced by Ms Bowley, we do not believe that Part 3-5A can apply to conduct which occurred before 6 March 2023. Section 527D is a civil remedy provision and renders conduct susceptible to penalty. A law is generally not to be construed as retrospective in its operation unless the legislature has clearly expressed that intention and is not to be construed as retrospective to any greater extent than the clearly expressed intention of the legislature indicates.14 There is no basis to think Part 3-5A was intended to apply to conduct that occurred prior to its commencement. Indeed, clause 60 of Schedule 1 is premised on Part 3-5A not applying to conduct which occurred before 6 March 2023. That position is confirmed by the Revised Explanatory Memorandum.15 [2026] FWCFB 139 14 [50] The submissions of Ms Bowley raise a question as to the interaction between clause 60(1) and (3) of Schedule 1. Clause 60(1) refers only to sexual harassment ‘at work’ whereas clause 60(3), in terms, refers to any sexual harassment of a worker. Despite the difference in language, it may be that clause 60(1) and (3) are intended to operate with respect to the same forms of conduct. Clause 60(3) provides that s 527D(1) does not apply in relation to sexual harassment which is part of a course of conduct which began before 6 March 2023 because that conduct is capable of being dealt with under the preserved Part 6-4B. If that is correct, clause 60(3) should be construed as only applying to sexual harassment ‘at work’. [51] If that is correct, Ms Bowley might be able to succeed even if the acts alleged after 6 March 2023 were part of a course of conduct which began before that date so long as one or more did not occur ‘at work’. We agree with Ms Bowley that it is not clear from the particulars to her application whether each of the alleged incidents of sexual harassment occurred ‘at work’ rather than ‘in connection with work’. However, given that we are satisfied Ms Bowley made a valid application because she alleges that she was sexually harassed in contravention of s 527D(1), it is unnecessary to resolve this question. It may be necessary for that question to be considered if Ms Bowley makes a sexual harassment court application. [52] Finally, the Commissioner dismissed Ms Bowley’s application under s 587(1)(a) on the basis that it was not made in accordance with the FW Act. There may be a question as to whether that section constitutes a basis upon which the application could have been dismissed. On one view, s 587(1)(a) operates where there is a valid application that has not been made in accordance with procedural rules made under the FW Act. However, nothing turns on that issue. There is no doubt that the Commission is able to dismiss an application for want of jurisdiction.16 If she had been correct in finding that Ms Bowley had not made a valid application, the Commissioner was entitled to dismiss the application. Conclusion and disposition [53] For these reasons, permission to appeal should be granted, the appeal allowed and the decision of the Commissioner quashed. The application should be remitted to the Commissioner to deal with in accordance with s 527R of the FW Act. [54] The Full Bench makes the following orders: (a) Permission to appeal is granted; (b) The appeal is allowed; (c) The decision of Commissioner McKinnon made on 5 December 2025 in Matter Number SH2025/152 is quashed; (d) The application is remitted to the Commissioner to be dealt with in accordance with s 527R of the Fair Work Act 2009 (Cth). [2026] FWCFB 139 15 VICE PRESIDENT Appearances: C Martin, of counsel, instructed by O’Donnell Legal for Natalie Bowley. C Massy, of counsel, instructed by Macrossan & Amiet Solicitors for John Weymouth. Hearing details: 16 March 2026. Sydney (using Microsoft Teams). Printed by authority of the Commonwealth Government Printer < PR810773> 1 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), [12], [261] and [419]. 2 N.B. [2025] FWC 3456. 3 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [54] (Rares, Collier and Charlesworth JJ). 4 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [64] (Rares, Collier and Charlesworth JJ). 5 See also Civmec Construction & Engineering Pty Ltd v Minchin [2025] FWCFB 2; (2025) 339 IR 268 at [28]. 6 As adopted in s 12 of the Fair Work Act 2009 (Cth). 7 See, for example, Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), [466]-[468]. 8 Fair Work Act 2009 (Cth), ss 577-578. 9 Ms Bowley’s submissions dated 29 September 2025, [29]; Ms Bowley’s submissions dated 3 November 2025, [2] and [37]; Transcript, 24 November 2025, PN14. 10 Transcript, 24 November 2025, PN41. 11 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), [244]. 12 Referred to with approval in Construction, Forestry, Mining and Energy Union v Williams [2009] FCAFC 171; (2009) 191 IR 445 at [15] (Moore, Middleton and Gordon JJ); Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCAFC 90; (2010) 186 FCR 88 at [151] (Logan J). 13 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), [1220]. 14 Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117 at [31] (French CJ, Crennan and Kiefel JJ), citing R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 371 (Griffith CJ). 15 Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Cth), [1220]. 16 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [68]-[69] ((Rares, Collier and Charlesworth JJ).