Positive duty to prevent sexual harassment

By now, you’re no doubt all across the new(ish) positive obligation to take “reasonable and proportionate measures” to eliminate, as far as possible, sex discrimination, sexual and sex-based harassment, conduct that subjects a person to a hostile workplace environment on the ground of sex, and related acts of victimisation, as well as the “how to” Guidelines published by the Australian Human Rights Commission. If not, you can catch up from our previous articles Respect@Work reforms: Are you ready? and New positive duty to eliminate sexual harassment: Guidelines now published on “how to”).

But wait, there’s more …

Safe Work Australia has recently published a Code of Practice on Sexual and gender-based harassment (Code) which you will need to review to ensure compliance with your obligations. The Code is designed to be read and applied in conjunction with the existing model Code of Practice: Managing psychosocial hazards at work.

Safe Work Code of Practice

Sexual and gender-based harassment at work is recognised as a psychosocial risk for the purposes of WHS legislation.

This new Code, published in December 2023, provides practical guidance to assist a person conducting a business or undertaking (PCBU) to comply with their WHS duties.

In particular, the main focus of the Code is on the risk management process, stepping out how a PCBU can apply it to risks of sexual and gender-based harassment at work:

  • Identifying hazards – This involves consulting with workers and their representatives, collecting and reviewing any relevant data, considering the nature and of work tasks, the physical work environment, and workforce structure, demographics and culture;
  • Assessing the risks – Consider the duration and frequency of exposure to, as well as the severity of, the risks, and how they may interact with other psychosocial hazards or other forms of harassment or discrimination;
  • Controlling the risks – Implement the most effective control measures that are reasonably practicable in the circumstances and ensure they remain effective over time.  The Code provides a lot of detail and examples of how this can work practice; and
  • Maintaining control measures and reviewing their effectiveness to ensure they are working as planned, making any modifications as necessary.

The Code also contains some guidance on investigating and responding to reports, as well as the role of leadership and culture in creating safe and respectful workplaces that are proactive in managing the risks of sexual and gender-based harassment.

Interaction with the positive duty and Guidelines?

A PCBU’s WHS duties in relation to risks of sexual harassment and other conduct are in addition to and run concurrently with its obligations arising from the positive duty under the Sex Discrimination Act 1984 (Cth).

In particular, the Code’s guidance on how to identify and manage risks complements the AHRC Guidelines’ Risk Management Standard (Standard 4), which goes into less detail than the Code on this aspect.

Although these two publications address compliance with two separate duties, implementing risk management systems in line with the Code can also assist in your organisation’s compliance with the relevant risk management aspect of its positive duty under the Sex Discrimination Act.

How can we help?

For more information about how your organisation can implement strategies to fulfil its WHS duties in relation to psychosocial risks and/or its positive duty under the Sex Discrimination Act, please reach out to Amber Sharp.