1, 2, 3, 4 – Guiding you through the new Code for addressing sexual and gender-based harassment at work

23 February 2024
Erin Lynch, Partner, Sydney Louise Rumble, Partner, Sydney

Whether it’s your work, health and safety obligations or the positive duty in the Sex Discrimination Act 1984 (Cth) (SD Act) (see our related article here), close enough is no longer good enough. Proactive compliance is key.

Safe Work Australia has recently released the ‘Sexual and gender-based harassment – Code of Practice’ (Code) to provide practical guidance to persons conducting a business or undertaking (PCBU). The Code guides PCBUs on how to manage health and safety risks arising from sexual and gender-based harassment at work and comply with the Model Work Health and Safety Act (WHS Act).

Businesses will be assessed on their compliance with both the Code and the positive duty. This involves more than just training and policies, since the Code has now made a targeted and proactive approach essential to managing health and safety risks arising from sexual and gender-based harassment at work.

Employers familiar with the Australian Human Rights Commission’s guidelines for compliance with the positive duty under the SD Act will find similarities with aspects of the Code. Although this might allow employers to take some of the same proactive steps towards compliance with both obligations, employers should still aim to understand and comply with their obligations under each duty separately.

For PCBUs, the Code describes a four-step risk management process to eliminate or minimise the health and safety risk of sexual and gender-based harassment so far as is reasonably practicable.

1. Identifying hazards

This involves understanding situations such as when and where the conduct could arise, how it could arise, the potential nature of the conduct, as well as identifying anyone who might be at higher risk of harm. Identifying hazards:

  • must involve a process of consultation with workers and their representatives;
  • should include collecting and reviewing data and information, for example, anonymous surveys and interviews;
  • involves considering work tasks and the design of work. For example, there may be a high risk of sexual and gender-based harassment at work for a role that involves attendance at conferences or exhibitions;
  • should consider the unique circumstances of the work such as physical work environment, whether there are remote workers and whether workers need to change clothing or shower at work;
  • requires observation and consideration of work and behaviours such as whether there is an acceptance of certain behaviours;
  • should consider power disparities, demographics and personal characteristics; and
  • should have a mechanism for reporting.

2. Assessing risks

A PCBU should consider the duration of time that a worker may be exposed to the risk, the frequency of the risk as well as the severity of potential sexual and gender-based harassment at work.

Assessment can also include considering whether there are other hazards present (for example, psychosocial hazards) and whether the interaction of such hazards will change the risk. The risk assessment process should consider the effectiveness of existing control measures, the way in which work is practically carried out, as well as any infrequent or abnormal situations.

3. Controlling risks

Once risks are identified and assessed, a PCBU can control the risk in consultation with workers. The Code makes it clear that the most effective control measures to eliminate or minimise the risk of sexual and gender-based harassment are tailored by consider the organisation’s size, type, work activities, location and workforce.

PCBUs should consider:

  • the duration, frequency and severity of exposure to risk;
  • the design of work;
  • the systems of work;
  • design and layout of the workplace;
  • worker accommodation;
  • plant, substances and structures of the workplace;
  • workplace interactions and behaviours;
  • information, training, instruction and supervision of workers; and
  • the interaction with other psychosocial hazards.

Examples of controls include introducing physical barriers, moving the timing of a task, the availability of personal phone numbers, policies regarding drug and alcohol consumption at work, maintaining communication with remote workers, ensuring good visibility in the workplace, conducting training on sexual and gender-based harassment, and ensuring that senior leaders lead by example.

4. Maintenance and review

The final step is to maintain the control measures, while reviewing their effectiveness. Control measures must be reviewed and modified if they are not working effectively. This can be determined by analysing whether the measures are eliminating or minimising the risks as much as reasonably practicable.

Common review methods can include inspecting the workplace, undertaking consultation, and analysing reports. It is also important that the person reviewing the control measures has both the resources and authority necessary to conduct a thorough review.

The Code is also reminder to senior leaders who are officers under the WHS Act, such as company directors, that they have a duty to exercise due diligence to ensure the PCBU complies with its duties under the WHS Act and work, health and safety regulations.

What next?

Your first question – Does the organisation, and particularly the leaders, understand the prevalence, nature, and drivers of sexual and gender-based harassment in the workplace?

If the answer is ‘no’ – we are here to help. If the answer is ‘yes, but we don’t do enough’ – we are here to help. If the answer is ‘yes’, then we would love to hear what you have done in your organisation.

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Authored by:

Erin Lynch, Partner
Louise Rumble, Partner
Lachlan Cicurel, Clerk

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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