Federal Code on Sexual Harassment

Earlier this month, the Federal Government published a Code of Practice aimed at providing practical guidance to employers to help protect workers from workplace sexual harassment. Titled the ‘Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025″ (the Code), this document is designed to assist employers to manage health and safety risks arising from sexual and gender-based harassment at work.

We have briefly outlined the sections of the Code below.

Introduction

The Code applies to the performance of work and to all workplaces covered by the Work Health and Safety Act 2011 (Cth) (WHS Act).

The Code begins by providing guidance around what behaviour is considered to be sexual and gender-based harassment, and where this type of conduct may occur. The Code defines sexual harassment as “any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances”, being consistent with the section 28A definition found in the Sex Discrimination Act 1984 (Cth) (SDA). The Code utilises the term “gender-based harassment” to refer to “unwelcome conduct based on a person’s gender, sex or sexuality”.

Legislative Duties

The Code usefully summarises the duties that a “person conducting a business or undertaking”, otherwise known as a “PCBU”, has under the WHS Act, as well as other legal frameworks that apply to sexual and gender-based harassment, including the positive duty under the SDA. This includes summarising the primary duty of care of a PCBU (section 19 of the WHS Act), the duty of officers (section 27 of the WHS Act), the duties of workers (section 28 of the WHS Act) and the duties of other persons at the workplace (section 29 of the WHS Act).

Risk Management Process

In order for a PCBU to meet their duties surrounding the elimination or minimisation of the risk of sexual and gender-based harassment, the Code provides that the risk management process as set out in the Work Health and Safety (How to Manage Work Health and Safety Risks) Code of Practice 2015 (Cth) can be applied.

This process involves four steps:

1. Identify hazards.
2. Assess risks.
3. Control risks.
4. Maintain and review control measures.

The Code goes further to detail what this process should involve, including consulting throughout the process with workers and other duty holders, and what each of the four steps entails.

Investigation

The Code outlines what a work health and safety investigation can look like, and provides guidance on the nature of the investigation (ie. whether a formal or informal investigation should occur), the selection of an investigator (such as whether an internal or external investigator should be appointed), what a trauma informed approach to the investigation would involve, and confidentiality.

Leadership and Culture

The Code emphasises the importance of leaders in creating a safe and respectful workplace, and how they can assist in being proactive in managing the risks of sexual and gender-based harassment by their actions and the culture that is cultivated within the organisation. For example, the Code provides that leaders should ensure that the organisation has effective communication processes to maintain their awareness and understanding of risks in the workplace.

While the content in the Code is not new, the Code provides a useful resource for employers in summarising obligations under the WHS Act, and providing guidance in the steps that should be taken to eliminate risks in the workplace, in an easy to digest format.

If you are interested in reading the Code, a copy of the Code can be accessed here.

If you would like any further advice on managing risks within the workplace, or assistance in conducting an investigation into work, health and safety issues, please contact our Employment, Workplace Relations and Safety group at McCabes.