In recent years, there has been a significant shift in how liability for workplace sexual harassment arises under the Fair Work Act 2009 (Cth) (FW Act), and the courts are now beginning to test those changes. Section 527D of the FW Act sits at the heart of this shift, creating direct individual liability for sexual harassment across a broad range of workplace participants, not just employers and their employees. The recent decision in Eklom v Marshall [2026] FedCFamC2G 772 (Eklom) gives an early indication of how broadly these provisions may be applied.
Section 527D prohibits a “person” from sexually harassing another person who is a worker, prospective worker or person conducting a business or undertaking, where the conduct occurs “in connection with” that status. As section 527D is a civil remedy provision, individuals can be directly accused and potentially liable for workplace sexual harassment under the FW Act.
This is a significant departure from the traditional model. The obligation appears to be no longer tied to an employment relationship or limited to employers. It applies broadly across the work health and safety concept of a “worker”, which encompasses employees, contractors and labour hire workers. The "in connection with work” requirement is similarly expansive, extending to work-related settings such as travel, functions and third-party interactions.
Critically, it appears not to matter who the harasser is, but whether the victim...
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