The recently approved federal Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice (the “Code”) confirms that while there is specific legislation addressing the prevention of sexual harassment in the workplace, sexual harassment also needs to be addressed through a work, health and safety (“WHS”) framework. The Code follows the model code of practice on sexual harassment (the “Model Code”) that was developed by Safe Work Australia in 2023. This Model Code was developed in response to the recommendations of the Respect@Work Report.

The Code acknowledges that WHS laws do not operate in isolation and it is intended that the Code is read in conjunction with the new positive duty to eliminate sexual harassment in the workplace contained in the Sex Discrimination Act 1984 (Cth). The Code is also intended to be read and applied in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024 as harassment of a sexual nature often occurs in conjunction with other psychosocial hazards. 

While the Code applies to Commonwealth entities, several states and territories have now introduced similar codes of practice addressing sexual and gender-based harassment. The codes of practice provide guidance for employers on how to achieve the required standards of WHS through providing effective ways of identifying and managing risks arising from sexual and gender-based harassment at work.   

Risk management 

The Code focuses on a four-step risk management process that employers should follow to proactively eliminate or minimise the risks of sexual and gender-based harassment as far as reasonably practicable. This four step process requires employers to;

• identify hazards by assessing when, where and how sexual harassment could occur and who is most likely affected; 
• assess the associated risks and the nature of the harm the hazard could cause;
• control the risks by implementing reasonably practicable measures; and
• maintain and regularly review controls, ensuring they remain effective over time. 

The specific steps required to implement the four-step risk management process will vary depending on the circumstances of the employer, but the Code provides numerous questions and practical issues to consider.  

The Code also addresses the role of leadership and organisational culture in creating a safe and respectful workplace, and conducting investigations while adopting a trauma-informed approach to ensure the emotional wellbeing and safety of employees.  

The Code provides practical guidance to employers and is admissible in WHS prosecutions as evidence of what measures are reasonably practicable for an employer to implement. All employers should be familiar with the Code (or similar state/territory code) to understand what they must do to meet their WHS obligations.  

For further information about the Respect@Work Report and managing psychosocial hazards in the workplace you can read our articles here and here.