The Fair Work Act 2009 (Cth) (FW Act) was amended in 2023 to prohibit sexual harassment in Australian workplaces.
Under section 527D of the FW Act, a person must not sexually harass another 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) conducting a business,
if the harassment occurs in connection with the other person being a worker, seeking to become a worker, or conducting a business.
In Eklom v Marshall [2026] FedCFamC2G 772 the Federal Circuit and Family Court of Australia (the Court) recently made declarations that a contractor and a customer had breached the FW Act by sexually harassing an employee.
The employee worked for a business which traded under the name of “Storage King”. He was initially employed as a storage consultant and later was the site manager.
The employee alleged that the was sexually harassed in the workplace by:
The employee alleged that the Contractor would make homophobic and sexualised statements towards him, as well as unwanted physical contact by shoving and bumping him, which the Contractor would claim that he was “joking round”. The conduct increased when the Customer began visiting the business.
The employee claimed that the Contractor and Customer became friendly and the two of them would make sexualised comments and jokes about and towards him. This included, referring to him as “gay boy”, “storage queen” and “office boy” as well as making comments of a sexual nature and about sexual fetishes, which they would claim that the employee would engage in based on their belief about the employee’s sexual orientation.
The employee was significantly affected by the conduct and he was diagnosed with anxiety, stress and a depressive disorder. He described that the he felt degraded and isolated as he was outnumbered.
The Court found that the found that the Contractor and the Customer had contravened section 527D of the FW Act by sexually harassing the employee.
The Court found that while the Contractor had initiated the sexually harassing conduct, the Customer later participated in the conduct. The Court described the Contractor’s and Customer’s conduct as “almost like a game” between the pair, where they made the employee the butt of the joke, and would do so simply because of the homosexual orientation that they attributed to him.
The Contractor and the Customer were found to be jointly and severally liable and were ordered to pay $90,000 to the employee.In addition, the Court ordered the Contractor and Customer to pay $13,000 each in pecuniary penalties to the employee.
Commenting on the conduct engaged in by the Contractor and Customer, the Court stated:
[29] As I said during the course of the proceedings today, it really does not matter whether the applicant is, or has, a homosexual orientation or a heterosexual orientation or a bisexual orientation or some other form of orientation at all.
[30] I do not know what orientation the applicant actually has, but it is irrelevant. The fact is that he is harassed and he has suffered because of it. And s 527D prohibits it from happening as it has happened because of his undertaking work in the workplace.
The case demonstrates the reach of the sexual harassment prohibition provisions of the FW Act. In this case, the employee was successful in bringing proceedings against a contractor and customer with whom he worked and engaged with in the workplace.
The decision also follows the order made in Mejia v Capital City Cafe-Bar [2026] FedCFamC2G 468, where orders were made for a director of a company to pay compensation and pecuniary penalties totalling $59,390 to a casual waitress for contravening section 527D of the FW Act by engaging in sexual harassment of the employee in connection with her employment.
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