Employers’ Positive Responsibilities to Prevent Sexual and Gender-Based Harassment

When legislation was passed introducing a positive duty on employers to prevent sexual and gender-based harassment in the workplace (discussed in our blog here), many employers were uncertain of the measures they needed to implement beyond their existing policies and procedures, and how they could demonstrate compliance with the duty in the event of investigation by the Australian Human Rights Commission or a safety regulator.

In December 2023, Safe Work Australia published the model Code of Practice: Sexual and Gender-Based Harassment (the “Code”) which provides employers with practical guidance to meet their work health safety duties with respect to preventing sexual and gender-based harassment in the workplace.

What does the Code of Practice do?

As an approved code of practice under section 274 of the Work Health and Safety Act (the “WHS Act”), the Code applies to anyone who is described in it as having a duty of care. It sets out the ongoing process that an organisation needs to undertake in order to manage safety risks within the workplace effectively. As a result, in most cases, if an employer follows an approved code of practice, they will demonstrate compliance with their work health safety obligations in relation to the issues that code of practice addresses.

A system of effectively managing any safety risks in a workplace involves four broad steps that need to be undertaken on an ongoing basis:

1. Identify hazards – by finding out who or what could cause harm.
2. Assess risks – by understanding the potential nature of the harm, seriousness of it and its likelihood of happening by looking at:

• Duration – how long is the worker exposed to the risk?
• Frequency – how often is the worker exposed to the risk?
• Severity – how severe is the harassment?

3. Control risks – by implementing the most effective control measures that are reasonably practicable within the circumstances.
4. Review control measures – by ensuring they are effectively implemented and continue to be effective over time by making changes as required.

The Code of Practice guides an employer through this risk management system highlighting specific inquiries and considerations that are relevant to risks of sexual and gender-based harassment in the workplace.

Key Takeaways:

The Code of Practice is a particularly useful tool for employers as it:

• provides practical methods and important considerations for identifying and assessing the level of risk regarding sexual and gender-based harassment at a particular workplace;
• provides employers with additional clarity about how they can prevent sexual and gender-based harassment in the workplace;
• has helpful sections on how to investigate issues/risks, reporting, the role of leadership and the importance of a workplace culture in supporting and facilitating the risk management process effectively;
• serves as a “yardstick” of what is “reasonably practicable in all the circumstances” when determining whether an employer has discharged their duties (particularly relevant in court proceedings or other actions by safety regulators); and
• is to be read and applied alongside the broader model Code of Practice: Managing Psychosocial Hazards at Work as sexual and gender-based harassment often occurs alongside other psychosocial hazards. See our article on that code of practice here.

Daniel Prodigalidad, Paralegal