• What is the prohibition?

  Under s 527D, it is unlawful to sexually harass someone who is:

  • a worker;
  • a prospective worker; or
  • a person conducting a business or undertaking

  if the harassment occurs in connection with the person harassed being a person of the kind listed above.

• Who is a worker?

  The meaning of ‘worker’ in relation to this prohibition is found in s 7 of the Work Health and Safety Act 2011 (Cth) and includes anyone who is: 

  • an employee; 
  • a contractor or subcontractor; 
  • an outworker; 
  • an apprentice or trainee; 
  • a student gaining work experience; or
  • a volunteer.
• What is sexual harassment?

  The FWA adopts the following definition in s 28A of the Sex Discrimination Act 1984 (Cth) (SDA) which provides that sexual harassment occurs if a person:

  • makes an unwelcome sexual advance; 
  • makes an unwelcome request for sexual favours; or 
  • engages in other unwelcome conduct of a sexual nature

  in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

• Who is prohibited?

  Anyone can be held personally liable under s 527D for sexually harassing another person ‘in connection with work’. This includes employees, managers, contractors, customers, clients, and members of the public.

Mejia v Capital City Café‑Bar [2026] FedCFamC2G 468 

Mejia is the first judicial determination on the prohibition’s application. The circumstances of the case involve a conventional employment setting.

• Facts

  A waitress was subjected, during a shift in the workplace kitchen, to unwelcome conduct by the café’s director, who:

  • approached her from behind; 
  • hugged and restrained her; 
  • pressed his body against hers; 
  • encouraged her to take money from his wallet; and 
  • kissed her on the lips.
• Finding

  The Court was required to determine whether that conduct constituted sexual harassment ‘in connection with work’, and found that the director’s actions amounted to unwelcome sexual advances and conduct of a sexual nature occurring in connection with the employee’s employment, thereby contravening s 527D. 

• Penalty & Damages

  The Court ordered that the director pay:

  • a pecuniary penalty of $9,390 for the contravention; and
  • compensation of $50,000 for the hurt, distress and humiliation arising from the contravention. 

  In determining an appropriate penalty, the Court had regard to the seriousness of the conduct and the power imbalance between the director and the employee.

Eklom v Marshall [2026] FedCFamC2G 772

Eklom is the second notable case and is particularly significant, because it confirms that liability under s 527D is not confined to employment relationships.

• Facts

  A site manager was subjected by a contractor and customer to:

  • repeated homophobic and sexualised statements; 
  • degrading remarks; 
  • jokes about the manager getting sexually assaulted; and 
  • unwanted physical conduct.
• Finding

  The Court found that this conduct, committed by non‑employees, fell within s 527D, and confirmed that the statutory prohibition is engaged so long as the victim is a worker and the conduct occurs in connection with work. The Court held that both the contractor and customer had contravened s 527D and described their conduct as a very serious example of sexual harassment at work.

• Penalty & Damages

  The Court ordered that the contractor and customer:

  • pay pecuniary penalties of $13,000 each; and 
  • be jointly and severally liable for $90,000 in compensation for the loss that the manager suffered because of the contravention.

  In making this decision, the Court had regard to the fact that the conduct was repeated, its psychological impact, and the need for deterrence.

Can employers be vicariously liable? 

Yes, under s 527E of the FWA an employer can be held legally responsible for sexual harassment carried out by their employees or agents in connection with work, because in these circumstances the conduct is treated as if it were done by the employer.

What is an agent? 

An ‘agent’ generally refers to a person who has been conferred authority by the employer to act on their behalf in dealings with others. 

Does an employer’s liability extend to third parties?

No, an employer’s liability under s 527E does not extend to the conduct of third parties. However, employers still have a positive duty to eliminate sexual harassment in the workplace as far as possible under s 47C of the SDA. This includes an obligation to take reasonable and proportionate measures to prevent workers being sexually harassed by parties outside the traditional employment relationship, including contractors, customers, and members of the public.

How do employers avoid liability?

Employers can avoid liability if they can prove they took all reasonable steps to prevent the conduct.

What amounts to ‘reasonable steps’ will depend on the circumstances, but is likely to require a comprehensive, proactive approach, including:

• having clear and up-to-date policies addressing sexual harassment (including policies about managing third-party conduct);
• providing regular training for employees and leaders;
• ensuring effective reporting mechanisms and prompt, trauma-informed responses to complaints; and
• undertaking risk assessments and implementing controls to reduce risk.