Sexual Harassment at Work: The New FWC Stop Order You Need to Know About (2026)
Since March 2023, the Fair Work Commission can issue stop-sexual-harassment orders. Learn how the Respect@Work reforms changed the law, the positive duty on employers, how to apply for a stop order ($0 fee), the FWC vs AHRC pathway, and the new criminal offence for serious cases.
The Respect@Work reforms: a fundamental shift in Australian law
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 implemented key recommendations from the Australian Human Rights Commission's landmark Respect@Work report (2020), authored by then Sex Discrimination Commissioner Kate Jenkins. The reforms represent the most significant change to sexual harassment law in Australia in decades. Before these reforms, the legal framework placed the burden almost entirely on victims to make individual complaints after harassment had occurred. The Respect@Work reforms shifted this paradigm in three critical ways. First, they introduced a positive duty on employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination, sex-based harassment, hostile workplace environments, and related victimisation — rather than merely responding to complaints. Second, they gave the Fair Work Commission jurisdiction to deal with sexual harassment through stop orders and dispute resolution, creating a faster and more accessible alternative to the AHRC complaints process. Third, they gave the Australian Human Rights Commission the power to enforce the positive duty through compliance notices. Together, these changes mean employers can no longer treat sexual harassment as a matter for individual complaints — they must actively prevent it.
What constitutes sexual harassment under Australian law?
Sexual harassment is defined in s28A of the Sex Discrimination Act 1984 as unwelcome sexual advance, 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 definition is broad and covers physical conduct (unwanted touching, kissing, or physical contact), verbal conduct (sexual comments, jokes, propositions, or innuendo), written or digital conduct (sexually explicit emails, texts, social media messages, or images), visual conduct (displaying pornographic material, indecent exposure, or leering), and creating a hostile workplace environment of a sexual nature. The conduct does not need to be repeated — a single incident can constitute sexual harassment if it meets the definition. It does not need to be directed at a specific person — creating a generally hostile sexual environment can be enough. The test is objective: would a reasonable person in the position of the complainant have found the conduct unwelcome and offensive, humiliating, or intimidating? The harasser's intention is irrelevant — it does not matter whether they intended to cause offence. Both men and women can be victims of sexual harassment, and harassment can occur between people of the same sex.
The FWC stop-sexual-harassment order: how it works
Under s527J of the Fair Work Act 2009 (inserted by the Respect@Work amendments), a worker who has been sexually harassed at work can apply to the Fair Work Commission for a stop-sexual-harassment order. The application is made using Form F75, and there is no filing fee. To be eligible, the applicant must be a 'worker' (broadly defined to include employees, contractors, subcontractors, apprentices, trainees, students on placement, and volunteers) who has been sexually harassed by an individual or group while at work, and there must be a risk that the harassment will continue. The FWC will typically schedule a conference within 14 days of receiving the application — these matters are treated as urgent. If the FWC is satisfied that the worker has been sexually harassed and there is a risk of it continuing, it can make any order it considers appropriate to prevent the harassment, except an order requiring payment of compensation. Common orders include directing the harasser to cease specific conduct, requiring the employer to review or implement anti-harassment policies, separating the harasser and the victim in the workplace, and requiring the employer to provide training. The process is faster and less formal than court proceedings.
The positive duty: what employers must do proactively
Section 47C of the Sex Discrimination Act 1984 now imposes a positive duty on all employers (and persons conducting a business or undertaking) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex discrimination, sex-based harassment, conduct creating a hostile workplace environment on the ground of sex, and related victimisation. This is a paradigm shift: employers must act proactively, not just reactively. The AHRC has published guidelines on what 'reasonable and proportionate measures' look like. They include: leadership commitment to a safe and respectful workplace, a clear and accessible sexual harassment policy, regular training for all workers (not just a one-off induction module), effective and confidential complaint handling procedures, risk assessments that identify workplace factors that increase the risk of harassment (such as power imbalances, alcohol, isolated work, and customer contact), monitoring and evaluation of the effectiveness of prevention measures, and support for people who experience harassment. Since December 2023, the AHRC has had the power to inquire into and enforce compliance with the positive duty, including issuing compliance notices. Failure to comply with a compliance notice can lead to court proceedings and penalties.
FWC vs AHRC vs state bodies: choosing the right pathway
Workers who experience sexual harassment now have multiple avenues for redress, and understanding the differences is important. The FWC stop-sexual-harassment order (s527J) is designed for speed and prevention: it is the best option when the harassment is ongoing and the worker wants it to stop immediately. However, it cannot award compensation. The AHRC complaints process under the Sex Discrimination Act is the primary pathway for seeking compensation, a formal apology, and policy changes. Conciliation through the AHRC is free and can result in significant compensation settlements (the median is approximately $15,000-20,000, but high-impact cases have settled for six figures). If conciliation fails, you can apply to the Federal Court within 60 days. State and territory anti-discrimination bodies offer similar processes under state law. The Fair Work Commission general protections jurisdiction (s340-343) may also apply if the sexual harassment constitutes adverse action because of a protected attribute. Workers compensation is another pathway if the harassment has caused a psychological injury. These pathways are not all mutually exclusive, but you should seek legal advice about which combination is appropriate for your circumstances. Unions, community legal centres, and specialist employment lawyers can provide guidance.
The criminal pathway: when sexual harassment becomes a crime
Some conduct that constitutes sexual harassment may also be a criminal offence. Sexual assault (non-consensual sexual touching or penetration) is a serious criminal offence in every state and territory. Stalking and intimidation offences may apply to persistent unwanted sexual attention. Indecent exposure is a criminal offence. In some jurisdictions, sending unsolicited sexual images is a specific offence (e.g., under NSW's Crimes Act 1900 s91P). The Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 and various state revenge pornography laws may apply to the non-consensual sharing of intimate images. If you have been sexually assaulted at work, you can report to the police in addition to pursuing any of the civil pathways described above. The criminal and civil processes are separate and can run in parallel. The Respect@Work reforms also strengthened criminal penalties for certain conduct — the Sex Discrimination Act now provides that contravening the positive duty can lead to enforcement proceedings. While the positive duty itself carries civil penalties rather than criminal ones, the combined effect of the reforms is to treat workplace sexual harassment as a serious legal matter across criminal, civil, and regulatory frameworks.
Practical advice: what to do if you experience sexual harassment at work
If you experience sexual harassment at work, your first priority is your safety. If you are in immediate danger, call 000. Otherwise, here are practical steps. First, document everything: write down what happened, when, where, who was involved, and who witnessed it, as soon as possible while the details are fresh. Save any written evidence — texts, emails, social media messages, photos. Second, tell someone you trust — a colleague, friend, family member, or union representative. You do not have to deal with this alone. Third, if you feel safe doing so, report the harassment to your employer through their internal complaint process. Your employer has a legal obligation to investigate and take appropriate action. Fourth, if internal reporting does not resolve the issue, or you do not feel safe using internal channels, you can go directly to an external body: the Fair Work Commission (for a stop order), the AHRC (for a formal complaint and conciliation), your state anti-discrimination body, or the police (if the conduct is criminal). Fifth, seek support: services like 1800RESPECT (1800 737 732), Lifeline (13 11 14), and your Employee Assistance Program can provide confidential counselling. Sixth, consider getting legal advice — many employment lawyers offer free initial consultations for sexual harassment matters.
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General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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