Through a suite of amendments to the Fair Work Act 2009 (FWA) which were introduced in 2023, it became an offence to sexually harass a person who was a worker in a business or an undertaking (s.527D).
This provision imposed obligations upon employers to ensure that appropriate systems were in place in the workforce to prevent such conduct from occurring.
However, a recent landmark Federal Circuit Court decision has extended the parameters of the application of this provision.
In Eklom v Marshall [2026] FedCFamC2G 772, a cleaning and maintenance contractor, together with a customer of a Storage King branch, were ordered to pay compensation and fines totalling $116,000.00 for sexually harassing a Storage King manager for many months, until he was ultimately dismissed after taking personal leave.
The former employee was medically diagnosed with anxiety, stress and depressive disorder, one month into experiencing the harassment.
The manager had alleged that the contractor began targeting him with homophobic and sexualised statements, in which he referred to him as the “office boy” and mocked him in a derogatory tone, together with engaging in unwanted physical contact by shoving and bumping him.
The customer had a friendly relationship with the offending contractor, and the customer in turn began engaging in similar conduct.
The Judge described the conduct as “harrowing” which led to a sense of isolation and degradation on the part of the manager. The Judge further found that the manager’s depressive disorder originated from this conduct, and continued to affect him.
This decision now makes it clear that the parameters of the prohibition contained in s.527D extend not just to employers and co-workers, but to customers, contractors and any other third parties who have engagement with a workplace.
A modern workplace should have a robust and effective anti-discrimination and anti-bullying policy, and it should have training materials available for new employees during the onboarding process, and/or should conduct training for existing employees in relation to conduct that is prohibited in the workplace.
For any guidance in relation to this or other workplace law issues, please feel free to contact Tony O’Connor 5570 9380.
Tony O’Connor
Partner – Litigation and Dispute Resolution Work Group
SPG Lawyers
