New guidance for employers on sexual and gender-based harassment in the workplace
On 5 March 2025, the Federal Government approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (Code). The Code provides guidance to persons conducting a business or undertaking (PCBUs) on how to protect workers against workplace sexual and gender-based harassment.
The Code implements recommendation 35 of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report released in 2020 and complements the introduction of the positive duty for employers to eliminate sexual harassment in connection with work, established in the Sex Discrimination Act 1984 (Cth).
Although the Code only applies to entities covered by the Work Health and Safety Act 2011 (Cth), being Commonwealth entities and non-Commonwealth licensees, it still provides practical guidance to all employers seeking to eliminate and/or minimise the risks of sexual and gender-based harassment in the workplace.
Additionally, codes of practice are admissible in court proceedings under WHS laws. Courts may rely on the Code in determining what is reasonably practicable in the circumstances where the Employer may be vicariously liable for sexual harassment that occurred in their workplace.
In a media release on 11 March 2025, the Minister for Employment and Workplace Relations, Murray Watt stated that:
“It’s crucial that workplaces develop safe working procedures. By helping duty holders to make workplaces safer, the code will help prevent more Australians from experiencing sexual and gender-based harassment.”
How does this impact employers?
The Code emphasises that employers must eliminate risks to health and safety if it is reasonably practicable to do so. If it is not reasonably practicable to eliminate the risks, employers must minimise risks so far as is reasonably practicable.
Importantly, the Code refers to regulation 55D of the Work Health and Safety Regulations 2011 (Cth) (WHS Regulations), which require that in determining control measures, PCBUs must consider all relevant matters. The Code also provides several examples of ways to manage the risk of sexual and gender-based harassment.
The following table sets out the matters referred to in regulation 55D, and one of the respective examples set out in the Code.
| Regulation 55D Matter | Example |
|---|---|
| The duration, frequency and severity of the exposure of workers and other persons to the risk of sexual and gender-based harassment. | Reduce the severity of exposure by introducing physical barriers to eliminate or minimise the risk of sexual assault, even if you are unable to eliminate the risk of verbal harassment. |
| How sexual and gender-based harassment and other psychosocial hazards may interact or combine. | The psychosocial hazard of low job control may prevent workers adapting the way they work to avoid sexual and gender-based harassment and providing greater job control may reduce the risk of it occurring. |
| The design of work, including job demands and tasks | Where you have identified a risk of sexual and gender-based harassment associated with particular tasks, consider changing when the task is done. For example, empty bins into an outside skip the following morning rather than in darkness or while intoxicated people may be gathered in the area. |
| The systems of work, including how work is managed, organised and supported. | Reviewing systems of work to minimise the risk of sexual and gender-based harassment. Examples of system updates that could occur are maintaining communications with workers working alone (e.g. regularly checking in with workers conducting home visits) and implementing policies regarding preventing excessive consumption of alcohol at work events. |
The design and layout, and environmental conditions, of the workplace, including the provision of:
| Use clear or semi opaque glass or screens to improve natural surveillance in areas such as offices, storerooms and other segregated areas. |
| The design and layout and environmental conditions of workers’ accommodation. | Provide well-lit access to and from accommodation and areas workers may need to access at night, such as eateries, laundries, or other common areas. |
| The plant, substances and structures at the workplace. | Provide lifting equipment to assist in handling patients in a hospital or aged card workplace setting to minimise the need for close physical proximity. |
| Workplace interactions or behaviours. | Set, model and enforce acceptable behaviour standards for all people in the workplace. Ban or refuse service to persons with a history of sexual or gender-based harassment (e.g. patrons at pubs or clients at gyms). If service is necessary, such as for medical care, put in place additional measures to protect workers and others (e.g. requiring attendance at a clinic rather than providing in-home care). |
| The information, training, instruction and supervision provided to workers. | Provide formal training on preventing sexual harassment, including induction training for new workers and training for existing workers. |
The Code also notes that a key aspect of the risk management process is to maintain control measures and review their effectiveness to ensure they are working as planned. PCBUs must review and modify or replace a control measure if it is not working effectively, and this must be done regularly.
Next steps
PCBUs should review their current policies and procedures, if they have not already done so, to align them with the Code given the status of the Code under WHS laws.
For more guidance on the Code and compliance with the positive duty to eliminate sexual harassment in connection with work, please contact the Gadens Workplace Advisory and Disputes team.
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Authored by:
Louise Rumble, Partner
Lauren Chappill, Associate
Isabella Kiparizov, Lawyer
Get in touch
- Louise Rumble
- Partner, Sydney
- +61 2 9163 3058
- louise.rumble@gadens.com
