24/09/2024
In January 2024, Safe Work Australia released a model WHS Code of Practice for Sexual and Gender-based Harassment, providing practical guidance on how to eliminate or minimise the risk of sexual and gender-based harassment at work.
Codes of practice are developed by SafeWork Australia to provide practical guidance for persons conducting a business or undertaking (PCBUs) on how to achieve compliance with their work health and safety (WHS) duties under the Model Work Health and Safety Act and regulations.
Codes of practice may be used by courts to determine what is “reasonably practicable” in certain circumstances – so taking steps to understand these requirements is important for all PCBU’s in meeting their WHS obligations.
Risk Management process
The Code of Practice for Sexual and Gender-based Harassment is intended to apply alongside the Code of Practice for Managing Psychosocial Hazards at work. Often sexual and gender-based harassment occur together with other psychosocial hazards, PCBUs should take a holistic view of these risks as the intersection between these risks can increase both the likelihood of occurrence and severity of harm.
The Code also sets out clear guidance to PCBUs as to what is required to eliminate or minimise the risk of sexual and gender-based harassment as far as is reasonably practicable.
This includes taking steps to:
- Identify hazards, which involves understanding situations in which harassment could occur, noting it could arise from internal (e.g. other workers) or external (e.g. clients, patients or customers) sources and could come in any form including verbal, physical and online.
This identification should be done in consultation with employees, through review of any data, records or information that you hold, by considering the physical work environment and any particular risks posed by it and the way employees work – for example, working alone in possibly vulnerable settings.
- Assess risks, including when, to whom, and the duration, frequency and severity of exposure to the risk. This may require consideration of interaction with other psychosocial risks or any intersectionality of your employees. For example, the risk of harm increases where when a person faces multiple forms of harassment.
- Control risks by implementing measures tailored to your organisation’s size, type, work activities, location and workforce. Ensure all employees are trained and understand their obligations and consider how sexual and gender-based harassment may interact or combine with other psychosocial hazards and increase risk.
You should also consider how to adjust systems of work, the design of work environment and the job expectations to control for risks. For example, considering the time work is performed, whether employees are alone or accompanied and any risk created by the nature of the duties being performed.
- Maintain and review control measures over time to assess their effectiveness. This may require amendments to be made where a control measure is not reducing the occurrence of sexual or gender-based harassment.
The Code requires PCBUs to take a trauma informed approach in addressing these hazards, including any investigation. This means understanding how trauma may impact a person’s participation in the process and taking steps to support workers in this context.
Interaction with other obligations
The obligation to provide a safe work place under WHS legislation exists concurrently with other obligations, including the positive duty under the Sex Discrimination Act.
If you have any questions about your obligations as a PBCU please contact the Griffin Legal Team at enquiries@griffinlegal.com.au.