Management of sexual and gender-based harassment as a safety risk: New Commonwealth guidance released

On 5 March 2025, the Minister for Employment and Workplace Relations, Murray Watt, approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (the Code).

The Code, which is now in force, is intended to provide practical guidance to persons conducting a business or undertaking (PCBUs) as to the management of health and safety risks arising from sexual and gender-based harassment at work.

Though as a matter of law the Code applies to entities under the Commonwealth Work Health and Safety Act 2011 (Cth) (the WHS Act) only, companies in all Australian jurisdictions face more scrutiny than ever from safety regulators as to their sexual harassment prevention framework. This makes the Code an important source of guidance for all employers.

The Code largely represents the adoption of Safe Work Australia’s Model Code of Practice for the federal work health and safety (WHS) jurisdiction and reflects significant progress in implementing recommendation 35 of former Sex Discrimination Commissioner Kate Jenkins' Respect@Work Report.

The Code complements the positive duty of employers under section 47C of the Sex Discrimination Act 1984 (SD Act) to prevent sexual harassment and other unlawful conduct.  It operates concurrently with related duties, including those requiring PCBUs to take reasonable and proportionate measures to eliminate, as far as possible, other conduct connected to work prohibited by the SD Act such as sex discrimination, sex-based harassment, conduct subjecting persons to a hostile work environment on the grounds of sex and victimisation. Our previous Insight on compliance with the positive duty is available here.

While the duties under the SD Act and WHS laws are similar in that they both require proactive action to prevent unlawful conduct and provide and maintain safe working environments, complying with the SD Act requirements alone will not necessarily ensure WHS duties have been met.

While the key objective of both schemes is to eliminate sexual harassment, it is essential that entities appreciate in detail how to apply WHS risk assessment methodologies to sexual harassment risk.

Relevance

As noted above, the Code applies to Commonwealth workplaces.  This is because it is made pursuant to the WHS Act, which applies in relation to the Commonwealth and public authorities and non-Commonwealth licensees.  The Code represents practical guidance for these PCBUs as to how they can discharge relevant health and safety duties imposed by the WHS Act where risks related to sexual and gender-based harassment are identified and need to be controlled.

For PCBUs to which the WHS Act applies, the Code is admissible in criminal proceedings alleging a breach of the WHS Act and the Work Health and Safety Regulations 2011 (Cth) (the WHS Regulations) as evidence of whether a duty has been complied with. This means a Court may look to the Code:

• as evidence of what is known about a hazard, risk assessment or control measures; and
• to determine what is reasonably practicable in the circumstances.

Practically, for these PCBUs, this means a failure to comply with the Code represents a real risk of attracting the interest of Comcare by way of investigative or enforcement action.

For PCBUs operating outside of the federal WHS jurisdiction, and to which the WHS Act does not apply, the Code is still significant.  This is because the Code is based on Safe Work Australia’s Model Code of Practice, also adopted by a number of other WHS jurisdictions.  It represents the position taken by the national WHS policy body on how to identify and manage risks related to sexual and gender-based harassment.  Accordingly, the Code and its counterparts adopted in other jurisdictions, are an important reference for all PCBUs and by adopting the actions recommended by them, a PCBU can gain confidence in its approach to managing these risks. This is especially the case for PCBUs to which the QLD WHS Act applies. Given this now requires the publication of a sexual harassment prevention plan detailing identified sexual harassment risks and control measures.

What does the Code cover?

The Code describes a range of behaviours based on gender and sex that can create a risk of harm at work, including:

• sexual harassment;
• sex or gender-based harassment and discrimination;
• hostile working environments on the grounds of sex; and
• gendered violence.

Consistent with the SD Act and anti-discrimination laws, the Code clarifies that:

• Sexual Harassment includes any unwelcome sexual advance, request for sexual favours, or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances.
• Gender-Based Harassmentincludes unwelcome conduct based on a person's gender, sex or sexuality, noting sexual harassment can be a form of gender-based harassment.

Both types of harassment can be one-off incidents or repeated behaviours, with serious types of harassment, such as sexual assault, constituting a criminal offence which can require sensitivity and coordination with law enforcement agencies.  For example, actual or suspected incidents of workplace sexual assault are notifiable incidents in the Australian Capital Territory. The Code also provides a non-exhaustive list of behaviours that fall under the umbrella of sexual and gender-based harassment, where and how it may occur, and identifies those in the workplace at greater risk, to assist PCBUs in identifying the types of conduct, working arrangements and workplaces that can present risks requiring management.

Who is responsible?

Managing health and safety risks arising from sexual and gender-based harassment at work is the responsibility of all workplace participants.  The Code identifies how the risk of sexual and gender-based harassment can be relevant to the various duties and duty holders under the WHS Act, which applies equally to PCBUs operating in jurisdictions which have adopted the model laws, and is consistent with the position in Victoria.  In summary:

The risk management process

To eliminate or minimise the risk of sexual and gender-based harassment, so far as is reasonably practicable, the Code emphasises the need to adopt a risk management process.  This is not a set and forget event, rather it is a process focused on continuous improvement requiring dedicated resources and ongoing consideration, especially following injuries, incidents, when new information comes to light or when it is apparent control measures are not working as intended. WHS regulators will have greater expectations in relation to more sophisticated PCBUs and those operating in environments where the risks of sexual and gender-based harassment is well known.

The Code provides detailed guidance on how to identify, assess and control the risks of sexual and gender-based harassment by:

1. Identifying risks: PCBUs must actively identify situations where sexual and gender-based harassment could occur. The Code outlines relevant considerations that can assist in identifying these risks, including methods for identifying risks (which necessarily requires consultation with the workforce), analysing the PCBU’s data, examining systems of work, the working environment and workplace behaviours and considering the characteristics of a PCBU’s workforce.
2. Assessing risks: PCBUs must actively assess the risks identified by having regard to their likely duration, frequency, severity and potential to interact with other risks.  The Code recommends having regard to the intersectional nature of harassment and interaction with other psychosocial hazards.
3. Implementing control measures: where risks cannot be eliminated, PCBUs must minimise them so far as is reasonably practicable. This includes designing work processes and environments that reduce the likelihood of sexual and gender-based harassment.  The WHS regulations specify the matters to which regard must be had when determining which control measures to implement. The Code includes detail regarding the various matters that should be considered when seeking to design effective control measures.
4. Maintaining and regularly reviewing control measures: to determine their effectiveness and to ensure they are updated as necessary.  The Code includes some critical reflection points for those assessing the effectiveness of control measures.
5. Regularly consulting with workers and other duty holders: PCBUs are required to engage in meaningful consultation with workers and their representatives at each stage of the risk management process, in accordance with their consultation duty.  Additionally, PCBUs are required to consult with other duty holders in relation to shared duties, so far as is reasonably practicable.

Why does this matter?

The prevention and management of psychosocial hazards, including those relating to harassment, are a key regulatory priority for WHS regulators across the various jurisdictions, with specialist focus teams and inspectorates taking a proactive approach to inspections and resolution of complaints. 

We expect to continue to see an uptick in regulator activity and enforcement action in this space, as demonstrated by:

• the reports of recent matters before the Courts, most recently including a business being convicted and fined for sexual harassment perpetrated on an employee, related to conduct including comments about appearance, personal questions, requests for massages and inappropriate touching;
• various reports demonstrating the prevalence of workplace sexual harassment in some sectors, increasing awareness of the risk and associated expectations to ensure it is appropriately managed; and
• the communications and practical guidance issued by regulators, including the Code, designed to assist employers to take proactive steps to prevent and respond to workplace sexual harassment.

What can you do now?

The Code sets clear expectations for PCBUs when controlling risks of sexual and gender-based harassment in the workplace.  The implementation of the Code represents a timely reminder for PCBUs with Commonwealth workplaces, as well as PCBUs operating in the other WHS jurisdictions, to reflect on their approach to the management of these risks.

We suggest your organisation should:

• familiarise itself with the Code (and by extension Safe Work Australia’s Model Code of Practice, and the relevant code adopted in its WHS jurisdiction), including by providing information, instruction and training to those with responsibilities for managing risks associated with sexual and gender-based harassment;
• review existing frameworks for managing these risks including policies, procedures and practices to ensure they are up to date, effectively implemented in the workplace (including by providing training and information), and consistent with the relevant code and accompanying obligations arising under WHS laws;
• ensure risk assessments for sexual and gender-based harassment have been recently reviewed, and are scheduled for regular review, to incorporate the matters raised for consideration by the Code and to consistently embrace any updates and developments in this space;
• consider the effectiveness of its consultation frameworks, to ensure it is receiving relevant and up to date information regarding these risks and related psychosocial hazards which impact operations for its workforce and those with which it shares WHS duties;
• review reporting mechanisms for sexual and gender-based harassment and related data to ensure reporting channels are working as intended, are accessible and meeting the needs of your workforce;
• reflect on investigation practices to consider if they are designed to minimise WHS risks, accommodate the various circumstances in which sexual and gender-based harassment can arise and promote a trauma informed approach; and
• encourage an approach to leadership and culture that is proactive in managing risks related to sexual and gender-based harassment, including by ensuring relevant information is being reported to and considered by officers, and acted upon as necessary.

A reminder on other recent developments

• As noted above, from 1 March 2025 organisations with operations in Queensland are required to have a written prevention plan in place to manage risks from sexual harassment or sex or gender-based harassment at work as part of its proactive management of such risks. For further information you can read our previous Insight available here.
• It is anticipated that from 1 December 2025, new regulations will be in place in Victoria addressing psychosocial health, including the requirement to have a written prevention plan when certain psychosocial hazards are identified in the workplace and biannual reporting to WorkSafe Victoria for some entities. Our previous Insight on this development is available here.

Please get in touch with a member of our team if you would like to discuss how the Code and Safe Work Australia’s Model Code of Practice on sexual and gender-based harassment may impact your organisation and the practical steps your organisation can take to discharge its WHS obligations.