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

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.

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.

• 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.

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?

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.

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.

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.

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.

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.

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.

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.