In January 2024, Safe Work Australia released an approved model WHS Code of Practice for Sexual and Gender-based Harassment (Code of Practice). The Code of Practice is another development in a series of changes which are ensuring that sexual and gender-based harassment is dealt with as rigorously as ‘traditional’ safety issues.
In 2022, Safe Work Australia amended the model WHS Regulations to include provisions requiring the implementation of control measures to eliminate or minimise, so far as is reasonably practicable, the risk of psychosocial hazards. In the same year, the Commonwealth Sex Discrimination Act 1984 was amended to introduce a new positive duty on employers and persons conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct (including sex discrimination and sexual harassment). These are key changes which have been adopted in the WHS Regulations and anti-discrimination legislation of various States and Territories. However, they are by no means the only changes which have been implemented.
Importance of the Code of Practice
The new Code of Practice is clearly intended to supplement these efforts and provides practical guidance on how duty-holders (including PCBUs and their officers) under WHS legislation can comply with their obligations. This is a key document for organisations to be familiar with as Codes of Practice are admissible in Court as to whether a duty under WHS legislation has been complied with, and they also constitute evidence of what is known about a hazard, risk, risk assessment or risk control at a time that an offence may have occurred. In simple terms, the Court will expect organisations to know about all the matters set out in the Code of Practice – ignorance will not be an excuse.
The Code of Practice lays the foundations for a risk-based approach to sexual or gender-based harassment. This means rather than adopting a reactive approach whereby organisations merely receive and respond to allegations.
Recommendations from the Code of Practice to address Sexual and Gender-Based Harassment in the Workplace
The Code of Practice advises duty-holders to:
- Consult with workers when identifying risks of sexual and gender-based harassment;
- Take a considered approach to the collection and review of data – rather than looking for the absence of reports, consider what data has not been captured;
- Identify risks of sexual and gender-based harassment arising from aspects of the workplace such as work tasks, the design of the workplace and the workforce structure (including demographics and culture);
- Consider the content of the information, instruction and training provided to workers and ensure that this is appropriate to various roles in an organisation (e.g. frontline/customer facing workers vs managerial and supervisory staff); and
- Conduct investigations and report on the outcomes in a way that does not create further psychosocial risks (ensuring a trauma-based and confidential approach).
What do we need to do?
In light of the new legislative and regulatory landscape concerning sexual and gender-based harassment, there is now a new minimum standard for organisations in managing these issues in the workplace. Reviewing and ensuring compliance with the Code of Practice will go a long way to ensuring that organisations are meeting their WHS obligations.
Six essential steps for tackling workplace harassment in 2024
As a minimum, the priority for all organisations in 2024 should be:
- Perform a risk assessment: To have an up-to-date sexual and gender-based harassment risk assessment (this may have already been considered in a broader psychosocial hazards risk assessment).
- Consult workers: Workers should be consulted as part of the risk assessment and more broadly in relation to how risks of sexual and gender-based harassment are managed within the organisation.
- Make leadership accountable: To implement targeted training that makes leadership aware that they are accountable for preventing sexual and gender-based harassment.
If organisations have met the above, then we recommend that organisations consider implementing further layers of resilience by ensuring the following:
- Seek feedback: Investigate the effectiveness of the organisation’s policies and procedures to prevent and address sexual and gender-based harassment by seeking anonymous feedback from workers.
- Analyse trends: Review the organisation’s available statistics in relation to claims/complaints, any gaps, and any areas where improvement is required.
- Drive continuous improvement: Form a committee to promote diversity, inclusion and equity initiatives, ideally comprised of members from a wide cross-section of the organisation.
Get in touch
Reach out to Kiri Jervis or our ESG team to ensure your organisation can thrive in a safer, inclusive workplace. Our team will ensure you remain informed on the new WHS Code of Practice and can assist you in taking proactive steps to implement its recommendations.