Approved Code of Practice covering sexual and gender-based harassment by Safe Work Australia

Sexual and gender-based harassment Code of Practice

Published 20 December 2023

What is it –

This approved Code of Practice was published by Safe Work Australia on 20 December 2023 and covers sexual and gender-based harassment. The Code provides practical guidance to Persons Conducting a Business or Undertaking (PCBUs) on how to manage health and safety risks arising from sexual and gender-based harassment at work (Harassment).

Following the Code will help duty holders comply with the positive duties under the federal WHS and Sex Discrimination Acts to prevent Harassment. Courts and safety regulators may consider the Code in determining whether PCBUs have taken sufficient action.

Below is a summary of the WHS Duties defined under the Code relevant to Harassment:

1. PCBUs – must take actions that are reasonably practicable to identify and eliminate or minimise risks to workers’ physical and psychological health arising from Harassment.
2. Officers (which includes company directors) must exercise due diligence to ensure their organisation takes reasonably practical actions to identify and eliminate or minimise risks arising from Harassment. This includes taking reasonable steps to eliminate or minimise these risks, including ensuring the organisation uses appropriate resources, and has safe work systems and a safe environment.
3. Workers must take reasonable care not to adversely affect the health and safety of others by ensuring they do not exhibit Harassment. They must also comply with reasonable health and safety instructions and policies.
4. Other persons at the workplace (e.g. customers, service providers)– similar to Workers, they must take reasonable care not to adversely affect other people’s health and safety by ensuring they do not exhibit Harassment. They must comply, so far as they are reasonably able, with reasonable instructions given by the PCBU.

Understanding the Risk Management Process for Harassment in the Code:

1. Identify hazards –

• PCBUs must identify where Harassment is a reasonably foreseeable hazard that could create risks to the health and safety of workers and others at the workplace. This includes identifying when, where and how the Harassment could occur, and who is likely to be affected. PCBUs must consider potential Harassment from other workers as well as third parties such as customers.

2. Assess risks –

• Once a PCBU has identified when, where and how Harassment may occur, it must assess the risk it creates to workers by considering the duration, frequency, and severity of their exposure to the Harassment, as well as any other hazards to health and safety that may interact with the Harassment.
• PCBUs should also review –the effectiveness of existing control measures.

3. Control risks –

• PCBUs must select control measures to eliminate the risk if reasonably practicable, and if not, to minimise the risk as far as reasonably practicable. What is “reasonably practicable” will depend on the organisation’s size, type, work activities, location and workforce, as well as the duration, frequency and severity of the exposure. Other relevant factors include how Harassment and other hazards interact, systems of work, how work is managed, organised and supported, environmental conditions, workplace interactions, and the information, training and supervision provided to workers.

4. Maintain and review control measures –

• PCBUs must maintain the selected control measures and review their effectiveness. This includes when: control measures are not minimising or eliminating risks; before changes that might give risk to new risks; if new hazards arising from Harassment are identified; if consulting with workers indicate a review if necessary; or if a health and safety representative requests a review, and the risk has not already been adequately reviewed.
• Consultation with workers and their health and safety representatives is an important component of all of the above steps.

For a detailed overview of what each process entails, visit Safe Work Australia Model Code of Practice: Sexual and gender-based harassment.

Investigating and responding to reports of Harassment

PCBUs WHS investigations should focus on protecting workers and others from harm by identifying risks of Harassment that have not been controlled, or there are more effective control measures available. WHS investigations do not require a formal complaint to proceed. They should take a trauma informed approach and must not create their own WHS risks. They should be fair, transparent, timely, impartial, conducted by appropriately trained personnel, and procedurally fair.

Leadership and culture

Leaders have an important role is creating safe and respectful workplaces that are proactive in managing the risks of Harassment.

To manage WHS risks, leaders need to understand:

• the prevalence, nature, and drivers of Harassment
• where there are risks of Harassment in their workplace
• how the risks are being controlled or if they are not, what controls need to be implemented.

Where to next?

1. Chat to us about our workplace sexual harassment training
   1. For executives, board members and senior leaders
   2. For front-line managers, supervisors and team leaders
   3. For general employees
2. Get advice or receive mentoring on updating your policies and procedures to ensure they are current.