Employment Law

Workplace sexual harassment and bullying are governed by some of the most significant employment law reforms Australia has seen in a generation. Since 2023, the Fair Work Act 2009 has contained a standalone prohibition on sexual harassment connected with work, separate from the longstanding workplace bullying regime. Employers now carry a positive duty to prevent harassment before it occurs, not just respond once a complaint is made.

At Koffels, we act for both employees and employers in workplace harassment and bullying matters. Whether you are an employee considering your options after experiencing harassment, or an employer wanting to understand your obligations and reduce your risk, the law in this area has changed substantially in the past three years and is now being actively tested in court.

This page explains the current legal framework for both sides. For advice specific to your situation, contact our employment law team via the free and confidential call-back request at the bottom of this page.

The legal framework, in brief

Two separate but related obligations now apply.

The first is the prohibition on sexual harassment connected with work under section 527D of the Fair Work Act, introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and in force since 6 March 2023. This sits apart from the Fair Work Commission’s older “stop bullying” powers, which still exist under a separate part of the Act, and apart from sexual harassment protections under the Sex Discrimination Act 1984.

The second is the positive duty under the Sex Discrimination Act, in force since December 2022, which requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, and related conduct. The Australian Human Rights Commission has held compliance and enforcement powers over this duty since December 2023.

Together, these reforms mean an employee who experiences workplace sexual harassment now has a direct statutory pathway through the Fair Work Commission, separate from a discrimination complaint, while employers face a proactive legal obligation that exists whether or not a complaint has been made.

For employees: what counts as workplace sexual harassment

Sexual harassment under the Fair Work Act takes its meaning from the Sex Discrimination Act. In broad terms, it includes an unwelcome sexual advance, an unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

The protection under section 527D applies to harassment that occurs “in connection with” work, which is a wider test than the previous requirement that harassment occur “at work.” It can cover conduct by colleagues, managers, clients or customers, and third parties encountered in the course of work. The protection extends to employees, contractors, volunteers, trainees and prospective workers, using the same broad definition of “worker” found in work health and safety law.

Workplace bullying is dealt with separately. Repeated, unreasonable behaviour that creates a risk to health and safety but does not meet the definition of sexual harassment generally falls under the Fair Work Commission’s longstanding stop bullying jurisdiction rather than the newer harassment provisions. In some cases, both pathways may be relevant to the same set of facts.

Your options if you have experienced harassment

An employee, or an industrial association acting on their behalf, can apply to the Fair Work Commission to resolve a sexual harassment dispute. The Commission will generally attempt to resolve the matter through conciliation or mediation in the first instance. Where the dispute cannot be resolved, the Commission can issue a certificate, which allows the matter to proceed to consent arbitration or to court.

Two remedies are available. The Commission can make a stop sexual harassment order, directed at preventing harassment from continuing or recurring, where there is a risk of future harassment. Separately, a worker can pursue compensation and civil penalties through the courts for a contravention that has already occurred, with no cap on the compensation that may be ordered.

There is a 24-month time limit to bring a claim from the date of the alleged harassment, so prompt advice matters.

For employers: the positive duty and what it requires

The positive duty does not wait for a complaint. It requires employers to take active, ongoing steps to prevent sexual harassment, sex discrimination and related conduct from occurring in the first place. The Human Rights Commission has published detailed guidelines describing seven standards employers are expected to meet, broadly covering leadership commitment, a safe and inclusive culture, clear knowledge sharing, risk management, support for those who report concerns, proper reporting and response mechanisms, and ongoing monitoring and transparency.

In practical terms, this generally means a documented harassment and discrimination policy that is actually communicated to staff, training that goes beyond a once-off induction module, a clear and accessible reporting process, and a genuine system for monitoring whether the workplace culture is actually changing, not just whether a policy document exists on file.

Since December 2023, the Human Rights Commission has held the power to inquire into compliance with the positive duty and can issue compliance notices or accept enforceable undertakings. Civil penalties for breaches of the positive duty are also under active consideration as a further reform, so the cost of getting this wrong is likely to increase, not decrease, in the period ahead.

Liability and the limits of “reasonable steps”

Employers can be held vicariously liable for sexual harassment carried out by an employee or agent, unless the employer can demonstrate that all reasonable steps were taken to prevent the conduct. This defence places the practical burden on employers to show genuine, proactive prevention work, not simply a policy that exists in theory.

Recent decisions are starting to test how this plays out in practice. Cases now coming before the courts under the section 527D framework involve findings against individuals who sexually harassed workers, with consent orders for compensation and civil penalties running into the tens of thousands of dollars per matter once both the harassment finding and related contraventions are taken into account. These early decisions confirm that the dispute resolution pathway introduced in 2023, conciliation through the Commission, followed by court enforcement where unresolved, is now being used as intended, and that courts are willing to impose meaningful penalties.

For employers, the message from this developing body of case law is straightforward. A harassment policy that exists only on paper is unlikely to satisfy the positive duty and is unlikely to support a “reasonable steps” defence if a claim is brought.

Where this overlaps with other employment law issues

Workplace harassment and bullying often arise alongside other employment disputes. Where harassment forms part of the reason for a dismissal, an employee may have both an unfair dismissal claim and a separate sexual harassment claim arising from the same events. Where an employer disciplines or dismisses a worker for raising a harassment complaint, this can raise general protections issues under the Fair Work Act’s adverse action provisions. We discuss the broader landscape of these protections, including the lessons from the Federal Court’s 2025 ruling on unlawful termination in Lattouf v Australian Broadcasting Corporation, in our employment law hub.

Frequently asked questions