National Code of Practice on Sexual and Gender-based Harassment

The Code, which implements the Model Code of Practice prepared by Safe Work Australia in December 2023, largely reinforces existing WHS obligations under the Model Work Health and Safety Act 2011 (Cth) and Work Health and Safety Regulations 2011 (Cth) which are in effect in all states other than Victoria.

This includes the ‘primary duty’ of a PCBU to, so far as is reasonably practicable, eliminate or minimise health and safety risks at work, including risks associated with sexual and gender-based harassment. 

To assist PCBUs in complying with WHS duties, the Code proposes practical methods for identifying and controlling risks, including: 

• consulting with workers regarding potential hazards through consultation mechanisms including focus group discussions, private and confidential individual discussions and anonymous worker surveys;
• collecting and reviewing data and information, for example records of past incidents (including grievance and bullying complaints), exit interviews or surveys;
• considering the systems and design of work and the physical work environment, for example proximity to the public and clients, environments where workers may be isolated, and areas with limited natural surveillance or inadequate lighting;
• encouraging reporting of hazards, including by protecting the privacy of workers who make reports and allowing for anonymous reporting where possible; and
• considering amendments to the systems and design of work and the physical work environment where any hazards are identified, for example by changing when, where or how a task is done, or changing the task itself.

While PCBUs have existing WHS obligations in respect of psychosocial hazards, including sexual and gender-based harassment, the implementation of the Code highlights the increased scrutiny of the Australian Government to sexual and gender-based harassment from a WHS perspective. Importantly, the Code is admissible in proceedings under Commonwealth WHS laws, and may be relied upon by a Court in determining what is reasonably practicable in the circumstances. This reinforces the need for PCBUs to take a proactive approach to WHS compliance with respect to sexual and gender-based harassment.

Penalties for non-compliance with WHS laws vary depending on the severity of the breach and the jurisdiction, but can include fines exceeding $1 million for both individuals and companies who fail to comply with their obligations.

Failure to appropriately identify and manage risks may also increase the likelihood of sexual and gender-based harassment occurring in the workplace, leading to issues including workplace disruption, higher attrition rates and an increase in internal and external complaints.

While the Code only applies in the Commonwealth jurisdiction at the moment, it is likely that other states and territories will follow suit by introducing similar codes of practice in the future, particularly given the Australian Government sets the standard for best practice. 

On 21 February 2025, the Victorian Government announced it will introduce, by the end of the year, new regulations strengthening how psychosocial hazards are managed, recognising psychosocial hazards to be as important as physical hazards, and creating new obligations for employers to identify and control them in their workplaces. It is anticipated that the new regulations will be made in October 2025 and will take effect from 1 December 2025.

Finally, as set out in our recent article, the Work Health and Safety Regulation 2011 (Qld) has recently been amended to provide that, from 1 March 2025, all PCBUs in Queensland must have a sexual harassment prevention plan in place. If a PCBU has workers in Queensland, the PCBU must ensure that they have:

• conducted a risk assessment;
• identified control measures; and
• consulted with workers on the prevention plan,

before the prevention plan is implemented.