Work Health and Safety Update: What the new Code of Practice on Sexual and Gender Based Harassment means for Australian workplaces

DATE PUBLISHED: September 26, 2024

key takeaways

On 20 December 2023, Safe Work Australia published its Model Code of Practice on Sexual and gender-based harassment. The model Code has since been implemented in approved codes prepared by the Work Health and Safety Regulators of New South Wales, the Northern Territory, South Australia, and Tasmania.
Approved Codes of Practice are implemented under the model Work Health and Safety legislation. They are not binding as sources of law but can be admitted as evidence during proceedings to assist in determining whether an employer has discharged their Work Health and Safety duty.
Approved Codes of Practice can also be used as a guidance document outside of court proceedings to assist employers in managing the relevant Work Health and Safety risks. We provide a summary below of the Code’s advice to employers on how to discharge their Work Health and Safety duty in respect of Sexual and Gender Based Harassment.

Has your business implemented safeguards to protect your employees from sexual harassment?

On 20 December 2023, SafeWork Australia released the first Model Code of Practice recognising sexual and gender-based harassment as a distinct category of workplace hazard.

New South Wales and the Northern Territory adopted their own Work Health and Safety Codes of Practice on Sexual and Gender Based Harassment, based on SafeWork Australia’s Model Code of Practice. South Australia and Tasmania have adopted the Model Code of Practice without modification.

The implementation of the Model Code of Practice against Sexual and Gender Based Harassment is an important step in addressing harassment in the workplace, providing employers with practical guidance on how to achieve health and safety standards required under the harmonised Work Health and Safety laws.

Importance of Work Health and Safety Codes of Practice

A Person Conducting a Business or Undertaking (PCBU) has a duty to ensure, so far as is reasonably practicable, the health and safety of workers and other persons in a workplace under the control of the PCBU (Primary Work Health and Safety Duty). Approved Codes of Practice can be used in court proceedings to assist in determining whether the PCBU acted in compliance with their duty in the circumstances.

Compliance with a Code of Practice is evidence of a PCBU’s compliance with their duty. Whereas an employer who does not act in compliance with the Code, will need to establish that they took alternate steps which ensured safety to an equal or greater standard than set out in the Code of Practice.

Compliance with the Code of Practice

The Code provides steps that employers should take to discharge their Primary Work Health and Safety duty by managing the risk of sexual and gender-based harassment.

Identify Hazards

Employers should consult with workers to understand situations where sexual and gender-based harassment may occur. Consider:

when and where harassment may occur; (e.g. in the office, while working from home, at conferences or via electronic communication);
how it could occur (e.g. contact with customers, colleagues, the public);
the potential nature of harassment (e.g. verbal / overt / subtle); and
the workers likely to be affected (e.g. you may have workers who belong to vulnerable groups).

ASSESSING THE RISKS

Employers should monitor factors which may increase the duration, frequency and/or severity of the risk of sexual and gender-based harassment, for example:

consider what may happen when risk management policies/procedures are not followed or when people knowingly act in contravention of internal policies or without management supervision;
some workers are at higher risk to sexual and gender-based harassment due to personal attributes such as gender, age, illiteracy, or previous exposure to harassment or other psychosocial hazards; and
exposure to other psychosocial hazards such as a high workload, workplace violence and aggression, poor organisational justice, poor support, remote/isolated work, and bullying may increase the risk or potential severity of sexual harassment.

control risks

Employers can control the risk of workplace exposure to sexual and gender-based harassment by taking steps such as:

work design, for example, job demands and tasks which minimise unnecessary or dangerous personal contact;
implementing systems of work which give workers the means to access support or supervision;
utilising workplace layouts and designs which create a safe environment with sufficient security, privacy and visibility;

addressing risk-related behaviours and interactions among workers (such as power imbalance or bullying and aggression); and
providing training and information to workers.

maintain and review control measures

Employers should be proactive in reviewing, modifying, and replacing control measures, particularly where a control measure is not eliminating or minimising the relevant risk to work health and safety.

The Code also recommends that reviews be conducted before changes at the workplace that are likely to give rise to a new or different health and safety risk that the control measure may not effectively control (for example, where the company plans to provide services which would significantly increase workers’ exposure to clients or customers).

investigating and responding to reports

Employers should have a fair, transparent, and timely system for workers to reports of sexual and gender-based harassment. When responding to these reports, employers should ensure that they take note of the level of risks involved, complexity of the situation, and the number of workers affected. While investigations should be conducted when a complaint is received, a complaint is not required and investigations may be warranted if you reasonably suspect sexual harassment in the workplace.

Sex Discrimination Act

A similar but separate duty is imposed by the Sex Discrimination Act 1984 (Cth), requiring employers to ‘take reasonable and proportionate measures to eliminate, as far as possible … sexual harassment, or harassment on the ground of sex, of employees’.

The implementation of risk management policies and precautions in line with the Code of Practice may also assist employers in discharging their positive duty under the Sex Discrimination Act.

How can you protect your workplace?

While the Model Code of Practice has not yet been adopted in all States and Territories, it still remains an authoritative guide for employers seeking to discharge their Work Health and Safety duty by managing the risk of sexual and gender-based harassment.

To ensure your workplace is best protected, you should review and update your existing policies and procedures based on the guidance provided in the Model Code of Practice and provide training to staff (particularly management) on how to prevent, respond to, and report risks of sexual and gender-based harassment.

how can mcw help?

If you require assistance in protecting your workplace against these hazards, or would like to discuss how these ongoing changes in the Work Health and Safety space may impact your business, reach out to the Employment and Industrial Relations team at McInnes Wilson Lawyers or contact James Christensen.