The Court ordered compensation pursuant to s 527D arising from a single incident of sexual harassment involving a kiss to the mouth, reinforcing that the Respect@Work reforms have introduced a direct, compensable statutory pathway.

The Court accepted the conduct caused real harm and awarded damages to reflect the personal impact of the harassment, not just the existence of inappropriate behaviour.  The focus was squarely on consequences, not intent or workplace informality.

Section 527D fundamentally changes the risk profile for employers.  Sexual harassment is no longer confined to discrimination jurisdictions or policy‑based responses.  It is a Fair Work Act (2009) contravention with financial consequences, capable of being enforced through federal workplace law processes.

Three Points Stand Out:

• compensation under the Fair Work Act 2009 is now a practical remedy, not a fallback option
• small and informal workplaces are squarely within scope
• failure to prevent or address sexual harassment can translate into direct monetary liability

For employers, the lesson is straightforward.  Policies alone are not protective.  Courts will assess whether preventative steps were real, active and effective and whether complaints were handled promptly and appropriately.

Sexual harassment risk now sits firmly at the intersection of employment law, compliance and financial exposure.

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The Supreme Court of Tasmania has clarified the Tasmanian Civil and Administrative Tribunal’s (TASCAT) authority to extend the time for objecting to a bill of costs under the workers compensation scheme. The Court’s decision also provides important guidance regarding the scope of this power.

The Case: Walker v Mondelez Australia Pty Ltd [2026] TASSC 6

In this matter, the Supreme Court was asked to consider whether TASCAT could extend a 14-day time limit stipulated in regulation 16 of the Workers Rehabilitation and Compensation Regulations 2021 (Tas). This regulation provides that, if no objection is filed within the prescribed period, a bill of costs is deemed to be admitted.

The Arguments

The worker had contended that regulation 16 was mandatory and left no room for an extension. However, TASCAT found that it possessed the power to extend the time limit under rule 11 of the Tasmanian Civil and Administrative Tribunal Rules 2021 (Tas), which allows the Tribunal to extend or abridge time limits. The worker appealed the decision to the Supreme Court of Tasmania, arguing that TASCAT was wrong to decide that it had thepower to extend time.

The Supreme Court’s Decision

On appeal, Chief Justice Shanahan confirmed TASCAT’s decision. His Honour held that rule 11, made under section 115 of the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas), grants TASCAT a broad discretionary power to extend time limits imposed by a “relevant Act”, including the Workers Rehabilitation and Compensation Act 1988 (Tas), even if the statutory period has expired. Regulation 16 deals with steps taken within ongoing proceedings before TASCAT and therefore falls within the Tribunal’s power to extend time.

Nature of Regulation 16 and the Power to Extend

The Court confirmed that regulation 16 remains a mandatory, deeming provision as had been found in prior cases. However, this does not preclude the availability of discretionary relief in suitable cases. The power to extend time, when properly interpreted, does not compromise the efficiency of the workers compensation scheme.

Distinction Between Types of Time Limits

Addressing concerns raised by the worker about the impact of the extension power on the efficient operation of the workers compensation scheme, Chief Justice Shanahan drew an important distinction between:

• time limits governing the commencement of proceedings, and
• time limits governing acts taken in relation to existing proceedings.

It was held that rule 11 applies only to the latter category. Rule 11 does not provide TASCAT with the power to extend time limits that govern the making of compensation claims or the commencement of proceedings in TASCAT.

Significance of the Decision

This decision provides valuable guidance for parties involved in workers compensation disputes. It confirms that strict procedural time limits continue to apply but that there is scope for extensions of time in relation to certain time limits within TASCAT proceedings so that unjust outcomes can be avoided.

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The worker had been continuously certified as incapacitated since making a workers compensation claim in May 2022. He later resigned from his employment and was paid out approximately 16 weeks of accrued annual leave as a lump sum. Following this, the employer’s insurer wrote to the worker advising that he could not receive workers compensation payments and annual leave at the same time, and weekly payments were stopped. The worker applied to the Tribunal for the resumption of weekly payments.

Both parties relied on an earlier decision of the former Workers Rehabilitation and Compensation Tribunal, commonly referred to as the Ausdoc case. In that decision, the Chief Commissioner determined that a lump sum payment of annual leave could be set off against a worker’s entitlement to weekly payments.

In this case, the employer relied on section 84(2) of the Workers Rehabilitation and Compensation Act 1988 (Tas) as the basis for suspending payments. Relevantly, that section provides that a worker is not entitled to weekly compensation payments while taking annual recreational leave or long service leave during a period of incapacity, where that leave is taken in accordance with section 84(1)(b).

Section 84(1)(b) allows a worker and employer, by agreement, to take annual leave during a period of incapacity for which workers compensation is payable. The key issue for the Tribunal was whether the worker had “taken” annual leave in accordance with that provision.

The Tribunal found that he had not. It held that the worker was no longer an employee at the time the annual leave was paid out and, as a result, could not have taken annual leave by agreement with the employer for the purposes of section 84(1)(b). The Tribunal drew a clear distinction between taking annual leave during employment and the payment of accrued leave as a lump sum on termination. Only the former has the effect of suspending an entitlement to weekly compensation payments.

The Tribunal therefore ordered that the worker’s weekly payments be resumed.

The Tribunal’s decision highlights a clear distinction between taking annual leave during employment and the payment of accrued leave on termination, with only the former capable of affecting a worker’s entitlement to weekly compensation payments.

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The issue was whether an employer should be given full access to pre-injury medical records produced under a summons, or whether access should be restricted where a worker objects to certain documents on the basis that they are not relevant to the claim.

Background

In this case, the worker issued a summons to two medical practices they had attended. The medical records were provided to the Tribunal and reviewed by the worker, who objected to parts of the records being released to the employer. The worker argued that some documents were not relevant because they did not relate to the specific injury for which compensation was being claimed.

The Tribunal’s decision

The Tribunal confirmed that the test for relevance is a low threshold. Documents will generally be open to inspection where they have an “apparent relevance”, meaning they may reasonably “throw light” on an issue in dispute.

An objection based on relevance will not succeed if there is a reasonable basis to think that the documents:

• could be used as evidence, or
• may be put to a witness in cross‑examination,

and could affect the outcome of the proceedings in a way that is not fanciful or speculative.

In this case, the worker’s claim involved a degenerative condition. The Tribunal found there was a real possibility that the medical records sought could assist in understanding the issues in dispute and may be relevant to how the claim should be resolved. Because the documents might reasonably be used in cross‑examination, they were considered to be apparently relevant.  The Tribunal accepted that there was a possibility that the documents returned may ultimately not turn out to be relevant, but this did not preclude the employer from inspecting them.

As a result, the Tribunal allowed the employer to inspect the pre-injury records without restriction.

Key implications

• This case suggests that in the context of workers compensation disputes TASCAT will generally allow access to prior medical history where the documents may assist in determining the issues in dispute or could reasonably be used in cross‑examination.

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A number of employees brought unfair dismissal claims against Helensburgh in the Fair Work Commission, claiming that their dismissals were not cases of “genuine redundancy” arguing they could have performed work which was done by contractors. Helensburgh objected to the applications on the basis that the terminations were cases of “genuine redundancy”.

The High Court found that the Full Federal Court last year correctly determined the matter when they found that when considering a redundancy situation, the employer had an obligation to assess whether the employees could perform the roles of contractors at its mine, prior to making redundancies.

The High Court has unanimously held that the Fair Work Commission is permitted to inquire whether an employer could have made changes to how it uses its workforce when determining whether a dismissal is a “genuine redundancy”.

The difficult facts for this employer included that while it was appropriate to decrease the size of their workforce due to COVID-19 impacts at that time, the employer had ongoing work that could be performed by the former employees, rather than contractors who were supplied by two companies on a “as-needs” basis.

The case is the 5th decision relating to this matter, and while the facts are not usual, it provides an interesting insight into the test for a “genuine redundancy”.

If you require further information about potential redundancies, please do not hesitate to contact a member of our Workplace Relations team.

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The change would prohibit clauses that prevent or restrict workers from moving (or attempting to move) to a competing employer, or from starting or operating a competing business within a specific geographic location and for a certain duration. These clauses are commonplace employment contracts and are often broad in scope.

The prohibition will only apply to workers earning currently less than the high-income threshold of $175,000.00 per year, which is stipulated in the Fair Work Act 2009.

Although the specifics of this proposed change are relatively scarce, it is important to note that there are notable exceptions to this prohibition.

The proposed prohibition will not allow:

• employees to ‘poach’ existing clients when moving to a competing employer or starting their own business; nor will it allow
• employees to disclose confidential information to competitors, such as client lists and commercially sensitive documents.

We recommend you review any employment agreements that have ‘non-compete’ or ‘restraint’ clauses and ensure that in the future (if the government is re-elected) they only cover the exceptions to this prohibition.  These clauses should always be specifically drafted to meet the particular circumstances of your employees.

If you need any assistance, please contact us.

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The decision concerned an application by an employer under s 88 of the Tasmanian workers compensation legislation for weekly payments of workers compensation to be suspended for the duration of the worker’s entitlement to Commonwealth parental leave payments. The employer’s argument was that, had the work-related injury not occurred, the worker would have foregone her usual wages and relied upon parental leave payments while on parental leave.

The Tribunal dismissed the employer’s referral. In doing so Deputy President Grueber determined that parental leave payments are not ‘earnings’ for the purposes of the workers compensation legislation but are instead a benefit that, pursuant to s 98 of the Commonwealth legislation, should not be taken into account for the purposes of state workers compensation legislation. The Tribunal also accepted that pregnancy and childbirth are a supervening event that is irrelevant to a worker’s entitlement to workers compensation.

The decision confirms that workers compensation payments must continue in accordance with a worker’s medical certification if a worker takes parental leave and receives Commonwealth parental leave payments. We recommend obtaining legal advice if you are uncertain about entitlements to weekly workers compensation payments.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

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Inspectors are on alert for unlawfully low flat rates of pay; “off the books” employment arrangements; inadequate or missed breaks; non-payment of penalty rates and overtime rates; inadequate or false recordkeeping and pay slips; and cashback schemes, in which employees are made to unlawfully pay back some of their wages, amongst other concerns.”

Fair Work Ombudsman targets Hobart eateries – Fair Work Ombudsman

We know only too well that Awards can be difficult to interpret. As an employer there are many things you need to be aware of in terms of rates of pay as well as allowances and/or penalties. The best way to be armed for inspection is by having the correct procedures and pay rates in place. In some cases, you may have the best of intentions but still receive a non-compliance notice. If this happens, best to seek assistance swiftly.

Our team at Dobson Mitchell Allport has wide ranging experience with these awards, including the Fast Food Industry Award, Hospitality Industry (General) Award and Restaurant Industry Award. We have acted for employers throughout the investigation, have assisted clients in reaching compliance and responding to the Fair Work Ombudsman. If you have any questions concerning Award coverage and/or employee entitlements, please contact a member of our team.

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In December 2022, a positive duty on employers and persons conducting a business or undertaking (PCBU) to eliminate workplace sex discrimination and harassment commenced.

Employers need to carefully consider their legal obligations arising under these new provisions.

This article discusses a number of issues that arise with respect to the positive duty and provides some information about how to prevent sex discrimination and harassment occurring and some advice on how to make sure that you comply with the positive duty.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth) (SD Act) by introducing a positive duty on employers and PCBUs to eliminate:

• workplace sexual harassment, sex discrimination and sex-based harassment;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
• victimisation.

This important change requires employers to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding after it occurs.

Regulatory powers have also been provided to the Australian Human Rights Commission (AHRC) to investigate and enforce compliance with the positive duty.

The focus on prevention of workplace sexual harassment and discrimination shifted responsibility from those who experience discrimination and harassment to those who are best placed to prevent it:  employers and PCBUs.

Provisions that relate to compliance with the positive duty, including the ability of the AHRC to conduct inquiries into compliance with the positive duty, issuing compliance notices, the enforcement of compliance notices and entering into enforceable undertakings, commenced on 13 December 2023.

The provisions put into practice Recommendation 28 of the Respect@Work Report (Report) which recommended that, “the Fair Work system be reviewed to ensure and clarify that sexual harassment, using the definition in the Sex Discrimination Act, is expressly prohibited”.

The provisions summarised below about the prohibition against sexual harassment in connection with work commenced on 6 March 2023.

These provisions do not replace the existing prohibition on sexual harassment in the SD Act or the Anti-Discrimination Act 1998 (Tas) (AD Act).  However, persons who allege that they have been sexually harassed in connection with work are now able to take action to address that harassment through a range of different ways.

Workers now have the choice to take action under the Fair Work Act (FW Act), or under existing provisions in the SD Act or the AD Act.  Unions also now have the right to pursue a claim on behalf of a member or the FWO can take action as a regulator.

The rationale for including these provisions in the FW Act is one of the key findings in the Report that the “… current regulatory framework fails to incentivise employers to create harassment-free workplaces. Instead, our laws place the burden of addressing harassment almost entirely on the individual.”

The new provisions are also designed to alleviate the burden on individuals having to address sexual harassment in the workplace by enabling other parties to represent the person making the allegations or to otherwise take action in relation to what a person has experienced in relation to their work.

These provisions in the FW Act apply to sexual harassment which occurs on or after 6 March 2023.

Positive duty to prevent sexual harassment

Most employers and PCBUs will already have in place a number of measures that are required to enable them to comply with the positive duty.  The amendments provide employers and PCBUs with an opportunity to review and, if necessary, update the measures they have in place to address sex discrimination and sexual harassment.

What is required under the positive duty?

An employer or the PCBU must take reasonable and proportionate measures to eliminate, as far as possible, specified forms of unlawful sex discrimination, including:

• sex discrimination;
• sexual and sex-based harassment;
• hostile work environments; and
• victimisation.

The focus of the positive duty is on prevention and taking action early.

Steps to take to build positive workplace culture include:

Be aware of heightened risk factors for sexual harassment.  Consider circumstances where power imbalances exist and legal-services industry systemic factors such as low diversity, inequality, gender imbalances in relationships, isolated working environments and instances of poor workplace culture.

Assess and manage risks.  Identify risks inside and outside your practice or workplace, drawing on relevant guidance, evidence, and past experiences to develop an understanding of what they are and what actions you can take to reduce or eliminate them. If you are not able to eliminate risks, minimise them so far as is reasonably practicable.

Foster a positive workplace culture.  Build a culture of openness, trust and respect that is supported by policies, human resources practices, staff education and training. This helps to minimise the risk of sexual harassment and supports a culture where any instances are either reported or dealt with in a way that minimises harm to workers. Ensure that a “culture of silence” or acceptance of inappropriate behaviour doesn’t exist.

Show strong leadership.  Senior managers should set a strong example of the types of behaviours and cultures which prevent workplace sexual harassment.

Provide information, training and education.  Adopt new and better approaches to workplace education and training that shows workers, managers and supervisors how to prevent and respond to sexual harassment, actions to take if they experience or witness it and how to report an incident.

Measure your effectiveness.  Like any other workplace hazard, employers should measure and understand the prevalence, scope and impacts of sexual harassment and monitor and share the effectiveness of their workplace initiatives to prevent and respond to it.[2]

The positive duty will align with the vicarious liability provisions in the SD Act where an employer may be found liable for the unlawful acts done by their employees or agents if an employer has not taken “reasonable steps” to prevent conduct occurring.

Most employers have already taken some steps to make it clear that sex discrimination and sexual harassment are unacceptable in the workplace and have adopted a number of practical measures to reinforce this.  There are already positive duties under WHS laws to eliminate or minimise, so far as is reasonably practicable, risks to health and safety, which include risks of sexual harassment, victimisation and other risk causing sex discrimination.

The new positive duty is intended to operate concurrently with existing duties in WHS laws.

Enforcement of positive duty

The AHRC is empowered to monitor and assess compliance with the positive duty. These powers include options to:

• conduct inquiries into compliance with the positive duty and provide recommendations to achieve compliance;
• give a compliance notice specifying the action to be taken, or refrain from taking, to address their non-compliance;
• apply to the federal courts for an order to direct compliance with the compliance notice; and
• enter into enforceable undertakings.

The AHRC may initiate an inquiry into a person’s compliance with the positive duty if it “reasonably suspects” that a person is not complying.

The AHRC has been resources to enforce compliance with the positive duty including:

• to educate employers about the positive duty to prevent workplace sexual harassment and assess their compliance;
• to facilitate a disclosure process for historical incidents of sexual harassment to support victim-survivors and identify improvements to systems and processes; and
• to ensure the AHRC is the central point of contact for information on workplace rights and responsibilities and provides a coordinated referral service.

The Commission has published comprehensive resources for employers and PCBUs about how they can comply with the positive duty, including:

• Guidelines
• An Information Guide
• A Quick Guide
• A Resource for Small Business
• Factsheets

The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) will be used by the AHRC in assessing compliance with the positive duty.[3]

A leading objective of the AHRC is to help employers and PCBU’s to improve their own practices.

What should you do now:

1. Implement appropriate policies and procedures on bullying, discrimination and harassment including sexual harassment which meet the extensive legislative and case law requirements. Review existing policies to ensure that they are up to date.
2. Ensuring that all employees attend anti-bullying, discrimination and harassment training, including information about what constitutes sexual harassment and ensuring employees understand avenues for reporting cases of this type of conduct.
3. Outline the types of behaviours, attitudes and language that disrespect or exclude people based on gender, gender identity, sexual orientation or assumptions about dominant gender stereotypes and socially prescribed gender roles.
4. Provide details about what will occur if policies are breached.
5. Act promptly and document any investigation process and provide support to all parties involved during any investigation process.

[1] www.respectatwork.gov.au/individual/understanding-workplace-sexual-harassment/what-causes-workplace-sexual-harassment

[2] Comcare – Workplace Sexual Harassment: Practical Guidance for Employers: www.comcare.gov.au

[3] See Resources on Positive Duty (humanrights.gov.au)

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The decision was in relation to an appeal of a determination by the Tasmanian Civil and Administrative Tribunal that an employer was not liable to resume making weekly payments in those circumstances.

Blow CJ allowed the appeal, finding that the employer became liable to make weekly payments of compensation to the worker from the time it received the medical certificate.

His Honour considered that it would be contrary to the legislative intention in the Act to interpret the legislation, as beneficial legislation, as allowing the employer to avoid making weekly payments for up to 84 days from the date of the delivery of the medical certificate following the gap.

In making his decision Blow CJ indicated that he agreed with an observation that had been made by the Tribunal that s81 of the Act (which limits the extent to which an employer has to back pay a worker when a claim for compensation is made) is not applicable in these circumstances. This leaves open a potentially significant question about what happens in a case where a worker presents a back dated medical certificate following a gap certification (particularly where the gap is a long one).  It is likely that this issue will require consideration in future cases.

Please feel free to contact our insurance litigation team should you have any questions about the impact of this decision.

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