First decision handed down on Fair Work Act 2009 (Cth) sexual harassment provisions

The Federal Circuit and Family Court of Australia (the Court) has delivered the first decision on s 527D of the Fair Work Act 2009 (Cth) (the Act). Section 527D was introduced into the Act following recommendations made in the Sex Discrimination Commission’s 2023 Respect@Work Report.

Section 527D prohibits sexual harassment in connection with work:

1. A person (the first person) must not sexually harass another person (the second person) who is:
   1. a worker in a business or undertaking; or
   2. seeking to become a worker in a particular business or undertaking; or
   3. 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).

For the purposes of s 527D, ‘sexual harassment’ has the same meaning as in s 28A of the Sex Discrimination Act 1984 (Cth), which states:

1. a person sexually harasses another person (the person harassed) if:
   1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
   2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

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.

The Decision

The applicant, a 23-year-old waitress, was employed to work at a café in Canberra.

The applicant’s unchallenged evidence was that a director of the respondent made unwelcome sexual advances, by hugging and then kissing her on the lips without her consent. The next day, the director sent text messages to the applicant apologising for his conduct, and promising that it would not occur again.

The applicant did not return to work at the café, and later commenced legal proceedings against both the café and its director.

Prior to a hearing, the director admitted to contraventions of s 527D, as well as a raft of unrelated breaches of the Act relating to underpayments and record-keeping.

The parties jointly proposed consent orders to the Court for compensation and pecuniary penalties, in the amount of $90,000, comprising of $40,000 in respect of pecuniary penalties (split $9,350 for the contravention of s 527D (sexual harassment) and $30,610 for the balance of the contraventions) and $50,000 as non-economic compensation for sexual harassment.

Takeaway for Employers

Section 527D provides a further avenue for sexual harassment claims, punishable by way of a civil penalties, in addition to a right to claim uncapped damages and other remedies, and can be imposed on any person who is found to have engaged in workplace sexual harassment.

Section 527E maintains the rule that employers can be vicariously liable for offending conduct, unless they can prove all reasonable steps were taken to prevent the employee or agent from doing the acts which contravened the protection against sexual harassment.

The potential liability is significant. Businesses must review their workplace sexual harassment policies and procedures in light of these and other recent changes. EMA Legal is able to assist employers with meeting these obligations.

Mejia v Capital City Cafe-Bar [2026] FedCFamC2G 468