New Work Health & Safety Code of Practice: Sexual & Gender-based Harassment
The Federal Government has recently approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (Code). This supports Recommendation 35 of the Respect@Work report (2020) to amend model work health and safety (WHS) laws to deal with psychological health and develop guidelines and a code of practice on sexual harassment.
This Code provides guidance to employers (and other persons conducting a business or undertaking) on meeting WHS obligations for to workplace prevent sexual and gender-based harassment.
In this article, we explore the key themes of the Code, and considerations for employers on how to effectively navigate these complex laws.
The risk management process
The Code indicates that sexual and gender-based harassment can be addressed using the risk management process described in the WHS (How to Manage Work Health and Safety Risks) Code of Practice 2015 (Cth), that is (with worker consultation at each step), to:
identify hazards;
assess risks;
control risks; and
review control measures.
While this process is widely known, the Code highlights important considerations for conducting the risk management process to prevent sexual and gender-based harassment in the workplace. Below are key takeaways on these considerations.
Gender norms and technology are evolving
The Code recognises a broader range of behaviours that may constitute sexual and gender-based harassment, reflect an evolving understanding of gender diversity and the role of technology in modern interactions, such as:
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Using incorrect pronouns or deadnaming (calling a person by their birth name when they have changed their name as part of their gender transition) to demean or belittle them.
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Such as their relationship status, physical appearance or bodily functions (e.g., menstruation or anatomy).
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Because clothing does not conform to narrow gender norms.
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Either in person or via technology (e.g., via social media).
Intersectionality matters
While gender inequality is a key driver, or underlying cause, of sexual and gender-based harassment at work, other aspects of a person’s identity (such as cultural background, sexual orientation, age, immigration status and employment status) can combine (intersect) to increase a person’s vulnerability to sexual & gender-based harassment (known as intersectional harassment).
It may also mean a person is less likely to report sexual or gender-based harassment, particularly if the conduct considered taboo to discuss in the person’s culture or if their employment is not secure (e.g., they are employed on a casual basis or they are in probation).
Intersectionality should be considered throughout the risk management process, such as whether consultation is accessible and culturally safe and in identifying which workers may be more vulnerable to sexual or gender-based harassment.
Adopt a trauma-informed approach
Trauma can affect each person differently, and workers experiencing trauma from sexual and gender-based harassment or with a history of trauma may interact differently with systems and processes.
Taking a trauma-informed approach is recommended throughout the risk management process, including in:
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Focus on hazards and risks rather than specific past incidents to avoid potential re-traumatisation.
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Avoid overly explicit examples or asking workers to share their experiences.
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Use a suitably qualified and impartial investigator, ensure the investigation process protects persons involved from re-traumatisation and retaliation.
Consider Other psychosocial hazards
The Code is intended to be read and applied in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024, referenced throughout.
The presence of other psychosocial hazards (e.g., high job demands, bullying, poor organisational justice, low support) may increase the risk of sexual and gender-based harassment. Furthermore, workers may be less likely to report sexual and gender-based harassment if they perceive other psychosocial hazards not being adequately addressed. As such, it is important that these are also examined and appropriately addressed.
Interaction with the Sex Discrimination Act 1984 (Cth)
An employer’s positive duty to prevent sexual harassment (and other related unlawful conduct) under the Sex Discrimination Act 1984 (Cth) (SDA) operates concurrently with and in addition to WHS obligations to prevent sexual and gender-based harassment.
For example, a worker complaint of sexual or gender-based harassment should prompt a review the effectiveness of existing control measures in addition to an investigation of the conduct and disciplinary action as necessary. Compliance with SDA obligations alone does not guarantee compliance with WHS obligations.
Go beyond policy
While policies are useful in setting expectations, alone they are administrative controls. To be effective, they must be supported by communication and training to ensure workers understand their obligations and what to do if they experience or witness sexual harassment.
Workplace culture and the role of leaders
Workplace culture is a key factor in assessing the risk of sexual and gender-based harassment. A workplace culture that tolerates or accepts inappropriate behaviours, even if they are not behaviours concerning sexual or gender-based harassment, can contribute to the prevalence of such harassment.
Leaders are critical in shaping workplace culture, and workers are more likely to behave appropriately and report instances of sexual and gender-based harassment if they see their leaders place a high importance on preventing such harassment. This includes by regularly engaging with workers on WHS issues, including sexual and gender-based harassment, and proactively addressing inappropriate conduct early, even if workers “seem ok with it” or do not make a formal complaint.
How we can help
At Norfolk Workplace Consulting, we offer a range of tailored training services to support respectful and inclusive workplaces, build leadership capability and prevent risk to your business.
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We partner with clients to develop workplace policies that are fit for purpose and up to date with relevant laws.
We consider the client’s operational requirements, unique challenges and culture to ensure policies are aligned and provide the required protections.
Once policies are developed we offer tailored online learning solutions to deliver engaging training on policies at scale.
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We offer independent investigations by investigators who are experienced in trauma-informed investigations.
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A 2-part masterclass that builds your leaders’ capability and confidence to model expected behaviours, enforce policies effectively, foster an environment of respect and inclusion, and handle complaints sensitively and confidentially.
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Ensure your employees understand their workplace obligations through our interactive and engaging program that dives deep into your workplace policies and respectful behaviour at work.
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We offer bespoke training, in person or online courses, that are completely tailored to your organisation and objectives.
Navigating and discharging your obligations under these laws can be a complex journey. Be proactive, don’t wait for a problem to arise before taking steps. Contact our team today to find out more about how we can assist your business.