Federal Court Finds Sexualised “Banter” Has Its Limits
In the first fully contested Federal Court judgment on the Fair Work Act sexual harassment provisions introduced in 2023, the Court found that a supervisor sexually harassed a mature-age apprentice carpenter at a fly-in, fly-out construction site on Kangaroo Island.
The Court accepted the apprentice’s evidence despite the supervisor’s denial. It found he asked her for o*** s** and made a crude sexual remark about her relationship with a co-worker. Both acts were sexual harassment under section 527D of the Fair Work Act.
The employer was also found vicariously liable. Compensation and penalties will be determined separately.
The case matters because there were no independent witnesses to the key conduct. The employer argued there had been workplace banter, including some sexualised banter. The Court accepted that some banter occurred, but found the conduct crossed a clear line.
Take-Out Point: No witnesses does not mean no case. Sexualised workplace “banter” is not a defence to a sexual proposition, and employers may be liable for a supervisor’s conduct.
See: Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734 (12 June 2026)