The Commonwealth Government recently approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (the Code). The Code provides practical guidance on managing health and safety risks arising from sexual and gender-based harassment at work.
Wider context of the Code
The Code supports implementation of recommendation 35 of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020). This recommended that work health and safety (WHS) ministers agree to amend model WHS laws to deal with psychological health and develop guidelines and a code of practice on sexual harassment.
The Code also complements the positive duty under the Sex Discrimination Act 1984 (Cth). This requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible (you can learn more about the positive duty here).
Recognising that sexual and gender-based harassment often occurs in conjunction with other psychosocial hazards, the Code should be read and applied in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024.
What are the key takeaways from the Code?
The Code outlines a risk management process to assist PCBUs in meeting their health and safety duties. The four-step process includes:
1. Identify hazards
A PCBU must identify risks of sexual and gender-based harassment to workers, or to others arising from the work of the business or undertaking.
Identifying the risks of sexual and gender-based harassment involves understanding situations in which it could occur, including:
- when and where (e.g. at the workplace; while on site visits);
- how it could occur (e.g. from contact with customers or the public, or from other workers);
- the potential nature of the harassment (e.g. verbal or physical, overt, subtle); and
- who is likely to be affected.
2. Assess risks
After identifying the risks, the PCBU should assess the risk, consider the duration (how long is the worker exposed to the risk?), the frequency (how often is the worked exposed to the risk?), and the severity (how severe is this harassment?).
The Code identifies that frequent or prolonged exposure to forms of sexual harassment that are considered subtle or less serious can have a similar impact on someone’s psychological health as a single, ‘more severe’ incident.
3. Control risks
PCBUs should implement the most effective control measures that are reasonably practicable in the circumstances and ensure they remain effective over time. Control measures should be tailored to the PCBU’s size, type, work activities, and workforce.
The Code recommends several strategies, including:
- Design, systems and layout of work: consider varying the systems and design of work and the physical work environment. For example, consider meeting clients in the office rather than in isolated areas, discourage working alone, ensure workplaces have high visibility and effective communication systems.
- Training and education: regular training sessions for employees and management to raise awareness and understanding of harassment issues.
- Clear policies: develop and communicate clear policies that define unacceptable behaviour and outline the consequences of such actions. Ensure all inappropriate or harmful behaviours are addressed early.
4. Maintain and review control measures
The PCBU must review and modify or replace a control measure if it is not working effectively. The reviews should be done regularly, and must be done:
- when the control measure is not eliminating or minimising the risks so far as is reasonably practicable;
- before a change at the workplace that is likely to give rise to a new or different health and safety risk that the control measure may not effectively control;
- if a new hazard or risk is identified if the results of consultation indicate a review is necessary; or
- if a health and safety representative requests a review because they reasonably believe one of the above has occurred and it has not already been adequately reviewed.
WHS consultation obligations apply at all stages during this risk management process.
What does this mean for your business?
Codes of practice are admissible in court proceedings under WHS laws and courts may rely on the Code in determining what is reasonably practicable in the circumstances.
While the Code only applies in the Commonwealth jurisdiction, the guidance is relevant for all business and can be used to guide risk management processes. We will likely see other states and territories introduce similar codes of practice in the near future.
The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.