Workplace Bullying and Sexual Harassment in Australia: FWC Orders and the Positive Duty

Workplace bullying and workplace sexual harassment are two separate Fair Work Commission jurisdictions under the Fair Work Act 2009 (Cth), and they carry different remedies: a stop-bullying order can never include compensation, while a sexual harassment dispute can lead to a compensation award if it proceeds to arbitration or court. A third pathway, the positive duty under the Sex Discrimination Act 1984 (Cth), requires every employer in Australia, regardless of size, to take proactive steps to prevent both.

This article addresses the Fair Work Commission's anti-bullying and stop-sexual-harassment jurisdictions and the Sex Discrimination Act positive duty, current as at 18 August 2026. It does not cover state or territory work health and safety law in detail; see the hand-off note below.

What Counts as Workplace Bullying

Part 6-4B of the Fair Work Act, sections 789FA to 789FL, has let a worker apply to the Fair Work Commission for orders to stop bullying at work since 1 January 2014. Eligibility runs wider than a standard employee: under section 789FC, a person can apply if they are a worker as defined in the Work Health and Safety Act 2011 (Cth), are not a member of the Defence Force, and experience the alleged bullying while at work in a constitutionally-covered business under section 789FD(1)(a).

The Work Health and Safety Act's definition of worker, which the Commission's own Stop Bullying Benchbook quotes directly, covers anyone who carries out work in any capacity for a person conducting a business or undertaking. That expressly includes an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, a labour-hire employee assigned to the business, an outworker, an apprentice or trainee, a student gaining work experience, and a volunteer, other than someone volunteering for a wholly volunteer association with no employees. Members of the Australian Federal Police and Commonwealth statutory office holders are also captured.

Section 789FD(1) then sets the substantive test: workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers the worker belongs to, at work, and that behaviour creates a risk to health and safety. Both elements, repeated unreasonable behaviour and a resulting risk to health and safety, are required; neither is enough on its own.

Reasonable Management Action Is Not Bullying

Section 789FD(2) provides that a worker is not bullied at work if the alleged conduct was reasonable management action, carried out in a reasonable manner. The Commission treats this as a qualification built into the definition of bullying itself, not a separate defence, and applies three elements: the conduct must genuinely be management action, it must be reasonable for that action to be taken, and it must be carried out in a way that is reasonable.

Examples the Commission's benchbook gives of management action include performance appraisals, ongoing meetings to address underperformance, counselling or disciplining an employee for misconduct, changing an employee's duties through transfer or redeployment, investigating alleged misconduct, denying a benefit, and refusing to let an employee return to work because of a medical condition. An informal, spontaneous conversation touching these same topics may not qualify as management action even where a formal process would.

What the Fair Work Commission Can and Cannot Order

The Commission's role in a stop-bullying application is preventative, not remedial, punitive or compensatory. Under section 789FF, if the Commission is satisfied a worker has been bullied at work and there is a risk the bullying will continue, it can make orders intended to prevent further harm, but it cannot order the payment of money to the applicant, and it cannot make any order at all if there is no ongoing risk that the bullying will continue. A worker whose bullying has already stopped, with no risk it will resume, generally has no basis for an order under this Part, whatever harm already occurred.

Sexual Harassment: a Separate Jurisdiction Since March 2023

Workplace sexual harassment is no longer dealt with inside the bullying jurisdiction. From 11 November 2021, workers could apply to the Commission for orders to stop sexual harassment at work under the same Part 6-4B that covers bullying. From 6 March 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 moved sexual harassment into its own Part, Part 3-5A, and separated the two jurisdictions: an application about bullying and an application about sexual harassment are now made separately. Alleged conduct from before 6 March 2023 is still assessed under the earlier version of the law.

Section 527D(1) of Part 3-5A prohibits sexual harassment connected with work. As with the bullying jurisdiction, section 527D(2) defines worker by reference to the Work Health and Safety Act 2011 (Cth), so the same broader-than-employee coverage applies. Under section 527F, the aggrieved person (a worker, a person seeking to become a worker, or a person conducting a business or undertaking who has been harassed, as defined in section 527D) or an industrial association representing them may apply. Section 527F(3) bars only a Defence Force member (as defined in the Defence Force Discipline Act 1982) from applying specifically for a stop sexual harassment order over harassment that occurred while they were a defence member; there is no equivalent bar for security-agency or Australian Federal Police members. Separate declaration powers under sections 527N-527Q let the Chief of the Defence Force, the Director-General of Security, or the Director-General of ASIS exempt specified activities from this Part, a narrower, discretionary mechanism rather than a blanket applicant restriction.

Two separate applications exist under Part 3-5A. A worker can apply for a stop sexual harassment order, which, like a bullying order, is preventative only and cannot include a payment of money. Separately, a worker can apply for the Commission to deal with the dispute, which covers past harm and proceeds first through conciliation, mediation or a recommendation, and if unresolved, can move to consent arbitration in the Commission or to a sexual harassment court application. Compensation is only available through this second pathway, not through a stop order. The Commission's Sexual Harassment Disputes Benchbook describes compensation as a broad concept covering both non-economic loss such as shock, distress and humiliation and economic loss, and cites example outcomes ranging from about $17,451 in lost remuneration in one arbitrated matter, to further examples between roughly $7,000 and $17,000, up to a court matter that awarded $476,163 in gross damages before a reduced judgment of $210,563.

The Positive Duty to Prevent Discrimination and Harassment

Separately from either Fair Work Commission jurisdiction, Part IIA of the Sex Discrimination Act 1984 (Cth), comprising sections 47B and 47C, places a positive duty on employers to eliminate, as far as possible, sex discrimination in a work context, sexual harassment connected with work, sex-based harassment, conduct that creates a workplace environment hostile on the grounds of sex, and related victimisation. The Australian Human Rights Commission describes this as a deliberate shift from a reactive, after-the-fact model to a proactive, preventative obligation, following the Respect@Work national inquiry.

The Commission states plainly that the positive duty applies to every employer and person conducting a business or undertaking in Australia, regardless of size or resources, including sole traders and the self-employed, small, medium and large businesses, and government. There is no small business exemption comparable to the redundancy pay exemption for employers with fewer than 15 employees, covered on recordinglaw.com's redundancy pay guide.

The Australian Human Rights Commission's power to enforce the positive duty, and the duty itself, both took full effect on 12 December 2023. The Commission's own Compliance and Enforcement Policy states that its powers under Division 4A of Part II of the Australian Human Rights Commission Act commenced on that date, the same date section 47C came into full effect, so there was no gap between the duty existing and the regulator being able to act on it. Those powers let the Commission open an inquiry on its own initiative, based on complaints, information from a union or worker representative, media reporting or other sources, without needing an employer's consent; issue a compliance notice specifying required action and a compliance period starting at least 21 days after the notice; and accept a legally binding, court-enforceable undertaking from an employer, which blocks a compliance notice from also issuing while it remains current.

Work Health and Safety Duties: a Separate Regulatory Pathway

Workplace bullying can also be addressed under state and territory work health and safety law, which the Fair Work Commission's own benchbook acknowledges directly: businesses and organisations must provide a safe workplace under model work health and safety laws, including by reducing the risk of exposure to health and safety hazards, and that regime is administered by Safe Work Australia and the state and territory regulators rather than the Fair Work Commission. recordinglaw.com does not yet have a dedicated guide to work health and safety or psychosocial hazard law; a worker whose bullying concerns sit primarily in workplace safety, rather than an ongoing Fair Work Commission order, should contact their state or territory work health and safety regulator directly.

Where This Overlaps With Other Employment Claims

Bullying and sexual harassment complaints often surface alongside other claims covered elsewhere on recordinglaw.com. A worker who is dismissed after raising a bullying or harassment complaint may have a general protections claim under the adverse action regime, covered on recordinglaw.com's general protections and adverse action guide, or, depending on the circumstances, an unfair dismissal claim, covered on recordinglaw.com's unfair dismissal guide. These are separate legal pathways from the Fair Work Commission's stop-bullying and stop-sexual-harassment jurisdictions described above, with their own eligibility rules and time limits. For the broader federal and state split governing Australian workplaces, see recordinglaw.com's Australia employment law hub.

This article provides general legal information about the Fair Work Act 2009 (Cth) and the Sex Discrimination Act 1984 (Cth), current as at 18 August 2026. It is not legal advice and does not account for your individual circumstances. For advice about a specific situation, consult a legal practitioner admitted in the relevant Australian state or territory.