Code of Practice on Sexual and Gender-Based Harassment

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by

Louise Tomlin
in

Understanding the New Code of Practice on Sexual and Gender-Based Harassment: What’s Changed?

The Australian Government’s release of the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 marks a significant shift in how workplaces must address and prevent sexual and gender-based harassment. Below, we break down the key changes, their nuances, and what they mean for employers and workers.

A New Approach: Treating Harassment as a Health and Safety Issue

The most notable change is the explicit recognition of sexual and gender-based harassment as a work health and safety (WHS) issue—not just a matter of HR or compliance. This means employers must treat the risk of psychological harm from harassment with the same as physical risks in the workplace.

Key Changes and Nuances in the 2025 Code

1. Expanded Definitions and Scope

  • The Code provides many clear definitions of both sexual harassment and gender-based harassment. Sexual harassment includes overt and covert comments, including unwelcome sexual advances, requests for sexual favours, or other unwelcome conduct of a sexual nature that could reasonably cause offence, humiliation, or intimidation. Gender-based harassment covers unwelcome conduct based on a person’s gender, sex, or sexuality, recognising that harassment can be a one-off incident or repeated behaviour.
  • The Code also addresses related behaviours such as hostile work environments and gender-based violence and acknowledges that serious acts (like sexual assault) may constitute criminal offenses.

2. Positive Duty and Proactive Risk Management

  • Employers (or PCBUs—Persons Conducting a Business or Undertaking) now have a positive duty to proactively prevent harassment. This goes beyond responding to complaints. They must identify, assess, and eliminate risks of harassment as far as reasonably practicable, and regularly review their risk management processes.
  • The Code requires meaningful consultation with workers, including health and safety representatives, when developing policies and risk management strategies. This could involve seeking feedback on workplace design, job design rostering, accommodation, and training.

3. Alignment with Psychosocial Hazard Management

4. Practical Guidance for Employers

  • The Code offers detailed, practical steps for employers, including:
    • How to identify and assess risks of harassment
    • How to implement controls to eliminate or minimise those risks
    • Guidance on responding to and investigating reports of harassment
    • The importance of leadership and workplace culture in prevention efforts 4
  • It also clarifies that simply complying with the Sex Discrimination Act 1984 is not enough; WHS obligations require additional, proactive measures.

5. Legal Weight and Jurisdictional Adoption

  • The Code is admissible in court proceedings under WHS laws, meaning courts can refer to it when determining what is reasonably practicable for employers to do.
  • While the Code is a Commonwealth instrument, several states and territories (including NSW, NT, ACT, and Tasmania) have adopted or are adopting similar codes. In other jurisdictions, the Code still serves as persuasive guidance for best practice.

What Does This Mean for Your Workplace?

  • All businesses, regardless of size, must comply with the new Code if they fall under the WHS legislation. Even where the Code isn’t formally adopted, it sets a clear benchmark for what regulators and courts expect.
  • Employers should review and update their policies, consult with staff, and ensure their risk management processes address both the physical and psychological risks of harassment.
  • Leadership and culture are now recognised as critical components of prevention—employers are expected to model appropriate behaviours and foster an environment where harassment is not tolerated.

Conclusion

The 2025 Code of Practice represents a major evolution in workplace standards, requiring a proactive, risk-based approach to sexual and gender-based harassment. By embedding these requirements in WHS law, the government is ensuring that psychological safety is treated with the same priority as physical safety. For employers, this means a renewed focus on prevention, consultation, and leadership, making workplaces safer and more inclusive for everyone.