Background
Elisa Clarke, a woman in her early forties undertaking a full-time carpentry apprenticeship, commenced employment with Beiler Constructions Pty Ltd in April 2023. She was assigned to work on a fly-in, fly-out basis at the Southern Ocean Lodge construction site on Kangaroo Island, South Australia, and at metropolitan Adelaide sites. She was the sole female employee at the Kangaroo Island site. During three roster swings between April and May 2023, Clarke alleged she was subjected to four incidents of sexual harassment by two male co-workers: site supervisor James Emmerson (the fourth respondent), who allegedly asked whether her intimate partner had a “sweaty dick” and later solicited oral sex from her; and carpenter Julien Lenepveu (the fifth respondent), who allegedly made a mocking remark about her relationship and asked whether she liked anal sex.
In late May 2023, Beiler Constructions director Scott Beiler informed Clarke she would no longer return to Kangaroo Island. Clarke alleged this decision was taken because of her sex — particularly in light of her relationship with a male co-worker — constituting adverse action under ss 340 and 351 of the Fair Work Act 2009 (Cth) (FW Act). She also alleged extensive underpayment of wages and entitlements under the Building and Construction General On-site Award 2020, and failures to provide pay slips and a Fair Work Information Statement. Clarke’s claims against a third respondent, Andrew Fuss, were settled during trial and he took no further part in the proceedings.
The hearing spanned December 2024 through May 2025. After the close of oral evidence, Beiler and his company conceded some Award underpayments via affidavit, though Clarke maintained the contraventions were more extensive than admitted. The parties agreed to confine the trial to liability, leaving compensation and pecuniary penalties for a further hearing.
The Court’s Holding
McDonald J found that Emmerson contravened s 527D of the FW Act by sexually harassing Clarke on two occasions. Beiler Constructions was declared vicariously liable for Emmerson’s conduct under s 527E — a position the employer ultimately accepted in closing submissions if harassment was found proved. The claims against Lenepveu were not established; his alleged conduct was not found to satisfy the statutory elements on the balance of probabilities. The adverse action claims under ss 340 and 351 — including the allegation that Clarke’s removal from Kangaroo Island was taken because of her sex — were also not established.
On the Award and statutory entitlement claims, the Court declared multiple contraventions by Beiler Constructions under s 45 of the FW Act: underpayment of wages in specific pay periods, failure to pay a tools allowance and industry allowance for the full period of employment, failure to pay for 8.25 hours of travel time to and from Kangaroo Island, failure to pay a travel pattern allowance for 32 working days in the Adelaide area, underpayment of superannuation contributions, and failure to pay annual leave loading. Separate contraventions of s 323(1)(a) (payment of wages in full) and s 536(1) (provision of pay slips) were also declared; Scott Beiler was found personally involved in the pay slip contraventions relating to four payments made between April and May 2023. A contravention of s 44 for failing to provide the Fair Work Information Statement was also declared.
The matter was listed for a further case management hearing to address compensation and pecuniary penalties for all established contraventions.
Key Takeaways
- Sexual harassment claims under s 527D of the FW Act — introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 — were upheld in respect of two incidents attributed to one co-worker; an employer that concedes vicarious liability conditionally in closing submissions will be bound by that concession if the underlying contraventions are proved.
- Adverse action claims based on sex discrimination (s 351) and exercise of workplace rights (s 340) are difficult to establish; the removal of Clarke from a preferred work site was not found to constitute prohibited adverse action on the evidence led at trial.
- Construction employers face cumulative liability for Award non-compliance: underpaid allowances, travel entitlements, superannuation shortfalls, and annual leave loading each constitute discrete contraventions of s 45 of the FW Act, and may also give rise to separate contraventions of s 323 and the NES.
- Company directors can be personally liable as “involved persons” under s 550 of the FW Act for pay slip failures where they are knowingly concerned in the contraventions.
- Failure to provide a Fair Work Information Statement at commencement of employment is an independently actionable contravention of s 44 read with s 125 of the FW Act.
Why It Matters
This decision is an early application of the FW Act‘s dedicated sexual harassment provisions — introduced only in late 2022 — in a trade and construction setting, a sector historically under-scrutinised for workplace gender-based misconduct. The finding of vicarious liability for a small construction business underscores that size is no shield: employers bear responsibility for the conduct of employees in connection with work, and an employer’s concession of vicarious liability during closing submissions — even conditionally — will be acted upon by the Court where the underlying harassment is proved.
The judgment also illustrates the compounding exposure that arises from Award non-compliance in the building industry. Clarke’s entitlements under the Building and Construction General On-site Award 2020 — tools and industry allowances, travel-time pay, travel pattern allowances, superannuation calculated on lawfully payable (not merely paid) wages, and leave loading — were found to have been systematically underpaid across her short period of employment. For practitioners advising construction businesses or their workers, the case is a practical guide to how each underpayment clause maps onto a separate civil remedy provision, and how director liability can attach to administrative failings such as the withholding of pay slips.