Australia has taken significant steps to enhance protections against workplace sexual harassment in response to the recommendations provided in the Respect@Work report published by the Australian Human Rights Commission (AHRC) in 2020.

Two of the key reforms following the Respect@Work report were:

1. the introduction of the ‘positive duty’ on employers to take reasonable steps to eliminate sexual harassment in the workplace as far as is reasonably possible; and
2. the changes to the powers and functions of the AHRC to publish guidelines, promote public understanding, make inquiries and undertake research into the positive duty.

For more information regarding the obligations under the Respect@Work report, see our article here.

In June 2025, the AHRC released ‘Speaking from Experience: What Needs to Change to Address Workplace Sexual Harassment‘ (Speaking from Experience Report), a landmark report based on the contributions of more than 300 victim-survivors of workplace sexual harassment. The report marks the delivery of the final recommendation of the Respect@Work report and illustrates how the AHRC has used its new regulatory powers.

Building on the Respect@Work report, this recent publication emphasises not only the magnitude of workplace sexual harassment, but the systemic failures that perpetuate it. The Speaking from Experience Report calls for even stronger measures to be implemented to combat workplace sexual harassment, finding that gaps remain in both prevention and response.

The Speaking from Experience Report found that a significant number of victim-survivors identified as a marginalised, or a vulnerable person. It found that workplace sexual harassment was not only an issue of gender and power imbalance, but it also related to other forms of discrimination, such as race, migration status, sexuality, gender identity, disability, First Nations status and age. Barriers to safety included insecure work, a lack of diversity in leadership, unhelpful responses to complaints, lack of culturally inclusive information and lack of culturally accessible resources.

The report outlines eleven recommendations to better address workplace sexual harassment. Key recommendations for employers to consider include:

• amending the Sex Discrimination Act 1984 (Cth) and relevant industrial laws to restrict the use of confidentiality and non-disclosure clauses in workplace sexual harassment settlement agreements;
• introducing civil penalties for breaches of the positive duty under the Sex Discrimination Act 1984 (Cth);
• strengthening employer accountability for preventing sexual harassment by amending the Australian Human Rights Commission Act 1986 (Cth) to enable better information sharing between regulators;
• amending the Workplace Gender Equality Act 2012 (Cth) to drive safer, more inclusive workplaces by requiring data collection on experiences of workers with disability and those from marginalised or vulnerable backgrounds; and
• introducing funding to expand trauma, violence and culturally informed responses to workplace sexual harassment.

The above recommendations are potentially significant for employers, and we will keep our clients updated as to how and when these recommendations are implemented.

Currently, the AHRC guidelines regarding the use of confidentiality clauses state that confidentiality clauses in workplace sexual harassment settlement agreements should be considered on a case-by-case basis and not be seen as a ‘standard term’. Employers should be aware that there is a greater risk that confidentiality clauses may be difficult to impose in settlement agreements, unless mutually desired by all parties to the agreement.

In a response to the recommendations to the Report, the AHRC has developed a suite of resources aimed to assist workers and employers prevent and respond to workplace sexual harassment, which are accessible on the AHRC website.

A new code of practice: Work Health and Safety & Sexual and Gender-based Harassment

On 5 March 2025, the Australian Government approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (Code) which provides guidance to businesses on how to manage risks associated with sexual and gender-based harassment in the workplace.

The Code is based on Safe Work Australia’s model code, and is designed to help businesses comply with their work health and safety (WHS) obligations. This Code is intended to be used in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024. The Code is also intended to complement the positive duty in the Sex Discrimination Act 1984 (Cth).

The Code focuses on a four-step risk management process that employers are recommended to adopt to take reasonable steps to eliminate risks in the workplace (such as sexual harassment) as far as is reasonably possible.

The standard WHS risk management framework requires employers to:

1. Identify where and how harassment may occur, who may be at risk, and through what forms (verbal, physical, online);
2. Assess the likelihood and severity of those risks, including ongoing psychological harm from perceiving risk, even where no risk has occurred. Consider the interactions with other psychosocial hazards such as job insecurity, power imbalances, and bullying;
3. Control risks through elimination or minimisation strategy (as far as is reasonably practicable). Controls may include environmental changes, considering risks relating to day-to-day interactions, functions and travel; and
4. Maintain and review implemented measures for effectiveness and responsiveness. Reassess after incidents and continue to update measures as necessary.

Whilst this risk framework is not new, it is important for employers to treat sexual and gender-based harassment as a WHS hazard. Under the Code, employers are also required to consult workers and health and safety representatives during hazard identification, risk assessment, and control decisions. In some states (for example, Queensland), employers are also required to develop and implement written prevention plans to proactively identify and manage risks related to sexual and gender-based harassment.

The Code also focuses on the importance of leaders in an organisation to actively shape and foster a safe culture through responding promptly and respectfully to reports and reinforcing organisational expectations in inclusive policies and social practices.

Enforcing respect: The AHRC’s evolving role in combating workplace sexual harassment

Throughout the financial year 2024 to 2025, the AHRC initiated four formal inquiries under its enforcement powers relating to the positive duty to proactively eliminate unlawful, sex-based conduct, including harassment. These inquiries targeted businesses in the following sectors:

1. Retail Trade
2. Accommodation and Food Services (Hospitality)
3. Finance
4. Transport, Postal & Warehousing

The affected businesses collectively employ around 7,500 workers. The inquiries identified that some workers were exposed to serious unlawful conduct during their employment with the targeted businesses. The AHRC has since worked with 35 employers to help them understand and meet their positive duty obligations.

For the 2025 / 2026 financial year, the AHRC will target two sectors identified as ‘high risk’:

1. Retail Trade
2. Accommodation and Food Services

These industries were deemed ‘high-risk’ due to the prevalence of work-related sexual harassment and the findings from the previous inquiries. The current targeted industries should take the inquiries as a clear signal to urgently review current practices and ensure compliance with the positive duty and their legal obligations.

We recommend that employers seek tailored advice in relation to sexual harassment complaints or assistance with reviewing and updating policies, practices, procedures and training.

This article was written by Clare Raimondo, Partner and Emma Campbell, Senior Associate.