Time to get your head out of the sand: Navigating the new Sexual and Gender-Based Harassment Model COP. 

Hopefully it is not news to you that in December 2022, a new positive duty on employers to prevent sexual harassment, sex discrimination and victimisation in the workplace was introduced in Australia (if you are based in NZ, feel free to read on as taking these steps can only benefit you and your business too!). Basically, this means you need to shift your focus from responding to workplace sexual and gender-based harassment only after it occurs, to taking proactive and meaningful action to prevent it in the first place. From where we’re standing and considering 1 in 3 Australians have been sexually harassed at work in the past 5 years (as reported in the AHRC Respect at Work Report 2022), this is a necessary change in legislation!  

What might be news to you however, is that in December 2023 Safe Work Australia introduced a new Model Code of Practice: Sexual and gender-based harassment, to provide practical guidance on exactly how you can meet these obligations. Hallelujah you might say, and we would agree! Although (having read all 42 pages of this guide ourselves) it can still be difficult to decipher exactly what you need to do. So, we are here to break it down for you! 

The COP clearly sets out the obligation for business owners to eliminate or minimise the risk of sexual and gender-based harassment through a Risk Assessment, so this is how we have chosen to present it to you. In SME’s this doesn’t need to be a particularly complex or long process, but it does need to happen!  

Step 1 - Identify Hazards

To identify potential hazards, you need to consider when, where and how the harassment might occur in your workplace. What might it look like and who is likely to be affected? This should be done in consultation with your team and practically, you may:  

• Review records of past incidents, exit interviews or surveys results.  

• Run a survey (whether you do it as part of an existing engagement survey or separately) to understand the risk from the perspective of your team. Just make sure you can guarantee anonymity!  

• Observe behavioural norms throughout your workplace and take note of anything concerning.  

• Consider role conditions that may present additional hazards such as overnight travel, interactions with the public, or working in isolated conditions.  

• Assess worker vulnerability as some groups of people are more likely to experience harassment. Without attempting to identify them all, they may include workers that are under 30, identify as LGBTIQA+, are Aboriginal or Torres Strait Islander, have a disability, or are from a culturally diverse background.  

• Review the physical environment and identify areas that may increase the risk of harassment, such as isolated areas with limited natural surveillance, location of amenities or requirements to change clothes at work (to name just a few).  

Step 2 - Assess Risks

Now you need to assess the level of risk. This includes the duration (how long a worker is exposed), the frequency (how often they are exposed), and the severity (how severe the exposure is). When assessing these risks we suggest you consider: 

• Existing control measures you have in place and how effective they are.  

• How work is actually performed, rather than how it is intended to be performed if you were to look at a position description or procedure. 

• Infrequent or abnormal situations that sometimes arise (like lack of supervision, unusual hours, or a lack of compliance with policies).  

• Intersectional harassment for those vulnerable workers who may be exposed to multiple forms of harassment (and therefore are at risk of greater harm).  

• Interaction with psychosocial hazards because of course, sexual and gender-based harassment rarely occur in isolation from other psychosocial hazards.   

Step 3 - Control Risks

Now it is time to put control measures in place. Commonly, we see employers jump straight to this part without properly considering steps 1 and 2 which means you can miss critical hazards or risks. 

• Reduce psychosocial hazards. This may include redesigning a task (e.g., emptying a bin in the morning rather than at night) or allowing greater job autonomy so individuals have control over their own exposure to hazards.  Refer to the Model Code of Practice: Managing psychological hazards at work for more.  

• Review systems of work and consider how they can be altered to reduce risks. You may do this by implementing regular 1-1’s, ensuring fair decision-making process, creating policies around the consumption of alcohol, or scheduling breaks in advance. Just to name a few! 

• Review workplace design and layout and consider if there are any practical changes you can make to increase visibility, security, or privacy for your team.   

• Influence workplace behaviour through leading by example, addressing inappropriate behaviour early and appropriately, ensuring responsible service of alcohol at workplace events, and communicating what a worker should do if they experience or observe harassment.  

• Review and update your sexual and gender-based harassment policy (and any policies relating to workplace behaviour while you’re at it). Ensure they are aligned with current legislation, and include responsibilities at all levels, how you’re managing risks, definitions and examples, consequences, available support services, and what to do if someone experiences or observes harmful behaviour.  

• Train your team with the intention to both educate and influence. This should happen at all levels of your business regularly (not just once). Make sure you are equipped to take a trauma-informed approach (being mindful of the trauma that your employees may have experienced throughout their lives) to training or seek external help. 

Step 4 - Maintain and Review

This one is simple! Review your control measures often and in consultation with your team. If they are not working or you have identified a new hazard, make a change. To ensure this doesn’t slip through the cracks it's wise to set up a reoccurring reminder. 

Lastly, make sure your team feel safe and encouraged to report concerning behaviours by providing multiple safe ways to do so, with various contacts to choose from and with numerous options for resolution. This is not a one size fits all situation, and a formal investigation can sometimes introduce more risk. Make sure you seek specific advice if a situation arises in your business!  

The intention of this article is certainly not to downplay the importance or complexity of the legislation or Code of Practice. However, we did want to put it in a form that is digestible and a little easier to understand with the hope that it encourages you to take the first step in meeting your positive obligation to prevent sexual and gender-based harassment in the workplace. If you need a helping hand, reach out to us and we can provide you with a framework to get started.