“It Was Just Banter” - Not Anymore

Many automotive businesses have a strong workplace culture. Workshops, tyre stores, panel shops and dealerships can be fast moving, loud, direct and full of banter.

There is nothing wrong with a workplace having personality. There is nothing wrong with people having a laugh. However, recent Federal Court proceedings are a timely reminder that the old “that is just how we talk around here” response will not protect an employer where comments or conduct cross the line into harassment.

In Clarke v Beiler Constructions Pty Ltd as trustee for Fox Trading Trust [2026] FCA 734, the Federal Court considered allegations made by an adult apprentice carpenter working in a male-dominated construction environment. While the case was not in the automotive industry, the lessons also apply to workshops and similar trade-based workplaces.

The employee alleged a number of matters, including sexual harassment, adverse action and underpayments. The Court did not accept every part of the employee’s case. However, it did find that two incidents of sexual harassment had occurred. Importantly, the Court found that the employer was vicariously liable for the conduct of its supervisor.

One of the key arguments raised was that the workplace had a culture of joking and banter, including sexualised banter. The Court accepted that the employee had, at times, participated in general workplace banter. However, that did not mean she had consented to serious sexual comments or requests directed at her.

That is the point members need to take from this case.

A person may joke with co-workers and still be harassed. A person may swear, laugh, or participate in a rough workshop culture and still be entitled to say that a particular comment or action went too far. The standard is not set by the loudest person in the workshop, the longest-serving technician, or the supervisor who says, “we have always spoken like this.”

The automotive industry should pay close attention to this. Many workshops have apprentices, junior employees, female technicians, service advisers, parts interpreters, office staff and sales staff working alongside long-term tradespeople. The power imbalance can be significant. An apprentice or junior employee may not feel comfortable challenging a senior technician, manager, foreman or business owner in the moment.

Silence should not be treated as agreement. Nervous laughter should not be treated as consent. Not making a formal complaint on the day does not mean the conduct was welcome.

For employers, the risk is not limited to the individual who made the comment. Employers also have a positive duty under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, workplace environments that are hostile on the ground of sex, and related victimisation. In plain terms, employers must be able to show they have taken proactive steps before an issue arises, not just responded after a complaint.

Separately, under the Fair Work Act, an employer can be held responsible for sexual harassment carried out by an employee or agent unless the employer can show it took all reasonable steps to prevent that conduct.

That means a policy sitting in a drawer is unlikely to be enough.

Members should be asking themselves:

·       Do our supervisors understand what is acceptable and what is not?

·       Have we clearly told staff that sexual comments, personal comments, intimidation and humiliation are not tolerated?

·       Do apprentices and junior employees know who they can speak to?

·       Would a complaint be taken seriously, or would it be dismissed as “just workshop talk”?

·       Have we trained managers and leading hands on their obligations?

·       Do we act early when conduct starts to drift into unsafe territory?

·       Can we show real, practical steps to prevent sexual harassment and sex-based harassment, not just respond to it after the event?

The case also carried a second warning. Once a workplace dispute starts, it often does not stay limited to one issue. In this matter, the Court also made findings about wages, allowances, superannuation, payslips and the Fair Work Information Statement.

That is common in employment disputes. A complaint about behaviour can quickly become a broader review of award compliance, record keeping and payroll practices. For automotive members, that means the Vehicle Repair, Services and Retail Award, Clerks Award, commissions, overtime, allowances, payslips and leave loading all need to be in order.

The practical message is simple.

Workshop culture is not a legal defence. “Banter” is not a magic word. The fact that a workplace has historically tolerated rough humour does not mean the conduct is acceptable now.

Employers need to set the standard before there is a complaint, not after one is made. That means clear policies, proper induction, supervisor training, early intervention and a workplace culture where staff understand that respect is not optional.

A strong workshop can still have humour, personality and energy. But it also needs boundaries.

Members who are unsure whether their policies, training or workplace practices are up to standard should seek advice from our ER Team before a minor issue becomes a formal complaint, a Fair Work matter, or a court claim.

To contact our ER Team, email [email protected] or call (02) 9016 9000.