Thinking | 1 July 2022

‘Enough is Enough’ – WA Parliamentary Inquiry report calls for extensive action to address sexual harassment in WA FIFO industry

By Rosemary Roach and Kirtika Kayarat

On 23 June 2022, the Community Development and Justice Standing Committee of the WA Parliamentary Inquiry (Committee) handed down a report on its inquiry into sexual harassment against women in the fly-in fly-out (FIFO) mining industry, titled ‘Enough is Enough’.

The Committee found sexual harassment was prevalent throughout the mining industry, and the FIFO part of the industry particularly, with 74% of female workers reporting being sexually harassed in the past five years. The nature of incidents were found to be severe, systemic and ‘an open secret’.

The findings of the report will trigger an urgent push for fundamental changes to be made to the industry’s treatment of sexual harassment. Already, many industry employers and industry bodies have indicated a commitment to implement recommendations from the report which are practical and can achieve positive outcomes.

While the report focuses on the mining industry and FIFO workplaces, many of the findings and recommendations set out in the report may be of relevance to a broader range of employers as they consider their own responses to preventing sexual harassment in the workplace. Further, many of the recommendations may ultimately impact a broader range of employers in Western Australia.

The Committee made 79 findings and 24 recommendations. We summarise some of the key findings and recommendations of the report below.

Key Findings (F) / Recommendations (R)
Considerations
F70. The Committee found that the mining industry has historically treated sexual harassment as a human resources issue, but it is primarily a workplace health and safety issue and must be treated accordingly.

R23. The Committee has recommended that comprehensive standards and guidelines be developed to lead the integration of sexual harassment into work health and safety practice, including:

  1. guidelines for dealing with identified incidents;
  2. definitions of thresholds for various types of identified behaviour/incidents;
  3. recognising that ‘days off work’ is not a reasonable measure for these matters; and
  4. expectations for reporting to the regulator and by the regulator of the prevalence and progress in dealing with incidents.
Sexual harassment is considered a psychosocial hazard, as it poses a significant risk to the psychological and physical health of workers. Under the Work Health and Safety Act 2020 (WA), all PCBUs must ensure, so far as is reasonably practicable, the health and safety of workers, which includes controlling the risk of exposure to psychosocial hazards.

WorkSafe WA has recently released two new information sheets with guidelines on identifying, controlling and responding to gendered violence in the workplace, specifically, sexual harassment and assault.

For all employers, this means that investigations into allegations of sexual harassment, should also, among other things:

  • identify contributing factors by considering all aspects of the incident such as the environment, work tasks, systems and procedures, responses and people involved; and
  • review the risk control measures to identify if they worked as intended and how they could be improved.
F8. The Committee found that the industry had most, if not all, of the major risk factors for sexual harassment in the workplace:

  • poor culture – including the general ‘tone’ of a workplace, especially where incivility is common and accepted as ‘the way we do things here’; acceptance by leaders of poor behaviours; protection of ‘high value’ workers above others; and the misuse of alcohol and drugs;
  • gender inequality – including rigid roles and stereotypical relations, aggressive male-male peer relationships, and disrespect for women generally; and
  • power disparity in the workplace – where managers and supervisors have relatively unfettered power over dismissal, promotion or reward.
These are risk factors that are relevant for all employers to consider when addressing the prevention of sexual harassment in the workplace.

As set out by WorkSafe WA, other risk factors to consider include:

  • whether sexual harassment has happened before? If so, how often, where and what contributory factors may still be present?
  • are there workplace factors which may increase risk, for example low worker diversity, use of alcohol in a work context?
  • are there industry specific risk factors for sexual harassment? For example, interaction with higher risk members of the public and/or clients, or isolated work.
  • how is the online working environment used? Are workers using social media for work purposes? How do workers interact with each other, managers and third parties?
R9. The Committee has recommended that the industry should ensure that sexual harassment and assault training is accredited, fit-for-purpose, and delivered by suitable practitioners. Training should be mandatory and ongoing for all employees. There should be additional specialist training for people who must formally respond to incidents.

R15. The Committee has also recommended that there be appropriate industry-wide training on bystander awareness and reporting be implemented as a key component of cultural change in the industry.

All employers should ensure that training in relation to sexual harassment is fit for purpose – having regard to the particular workforce and working environment. Training in relation to sexual harassment needs to be completed by all employees and refreshed on a regular basis.

Training must also focus on the role of the bystander – both the important role played by the helpful bystander and the damaging role played by the unhelpful bystander.

R3. The Committee has recommended that the industry must explore ways to prevent perpetrators of serious sexual harassment simply finding reemployment elsewhere in the industry. This should involve a thorough exploration of an industry-wide workers’ register or accreditation. Such a recommendation presents a number of complexities in its implementation, including considerations of natural justice.

However, all employers, particularly those with large and diverse workforces across multiple sites may wish to consider whether there are internal mechanisms that can be put in place to avoid situations where employees who have exited employment due to a finding they have sexually harassed another employee are not subsequently rehired in another part of the business.

F49. The Committee found that the use of non-disclosure agreements (NDAs) and related legal instruments inhibits the proper capture of all information, and indicates a power imbalance that limits the free choice of victims.

R17. The Committee has recommended that the current use of NDAs and private settlements be investigated, and options for issuing formal guidance to the industry to inhibit their future use be explored.

In the Respect@Work: Sexual Harassment National Inquiry Report 2020, published by the Australian Human Rights Commission, it was recognised that NDAs have often served to silence and intimidate victims, while protecting harassers.  However, it was also recognised that NDAs can provide benefits to victims and other parties. The Australian Human Rights Commission recommended the development of a practice note to identify best practice for the use of NDAs. To date, no practice note has been issued.

The recommendations from the Committee may ultimately result in a far more restrictive use of NDAs in the mining industry and potentially in WA more generally.

F65. The Committee found that there are inconsistent legal definitions of sexual harassment in different pieces of legislation applicable to addressing sexual harassment in WA workplaces.

R20. The Committee has recommended that there be timely implementation of the recommendations of the Law Reform Commission’s review into the Equal Opportunity Act 1984, with a focus on reversing the onus of proof on victims of sexual harassment, to remove the ‘disadvantage’ test, and make it consistent with recent anti-discrimination law from other jurisdictions.

R21. The Committee has recommended that the WA regulatory framework be reviewed to ensure that there is a consistent and comprehensive definition of ‘sexual harassment’ across all the relevant components of the system.

The definition of sexual harassment under the Equal Opportunity Act 1984 (WA), is different to the definition of the sexual harassment under the Sex Discrimination Act 1984 (Cth).

Relevantly, under the WA Equal Opportunity Act, the onus falls on a complainant to prove that the harassment has or would disadvantage them in employment.

If this recommendation is adopted by the Government it will have an impact across all workplaces – with a consistency in the definition of sexual harassment a welcome development.

R1. The Committee has recommended that the Government consider establishing a forum to hear, document and acknowledge the experiences of victims of historical workplace sexual harassment, and exploring opportunities for redress, including appropriate compensation. It will be for the Government to respond to this recommendation. Clearly, a key consideration will be the level of public disclosure arising from matters discussed at any forum and the extent to which an alleged perpetrator and relevant employer is given an opportunity to respond.

Next steps

A further finding of the report was that ‘company processes were often ineffective; a more honest reading could suggest they were more focused on protecting companies and their reputations than serving the best interests of people who had been harassed’. The report serves as a timely reminder to all employers to ensure that the policies and procedures in place to prevent and respond to sexual harassment in the workplace:

  • properly deal with the risk of sexual harassment as a safety issue;
  • provide for culturally safe and sensitive reporting options; and
  • are properly understood throughout the workplace through tailored and regular training programs.

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