On 21 September 2022 the WA Government tabled its response (Response) to the ‘Enough is Enough’ report (Report) made by the Western Australian Parliament’s Community Development and Justice Standing Committee following the Inquiry into sexual harassment against women in the FIFO mining industry (Inquiry).
Background
The Response was tabled by the Minister for Industrial Relations, Minister Johnston, and supported by the Minister for Women’s Interests, Minister McGurk. It accepts there are issues within the sector but makes clear that the WA Government considers no dedicated legal reform is warranted to implement the Report’s recommendations.
The WA Government’s strategy
While the WA Government generally accepted all of the Report’s recommendations (by either supporting, supporting in principle or noting these), a key theme in the Response is that the Government sees that primary obligation to ensure workplaces are safe, healthy and responsible rests with industry, which includes sexual harassment risk management. Such an approach is appropriate and consistent with the risk-based nature of safety laws, which are increasingly utilised to risk assess and control sexual harassment hazards at enterprise-level.
The WA Government’s strategy appears to be to support industry to drive a cultural shift in the mining sector. The Response acknowledges work already underway in other areas, including:
- existing avenues for those who experience sexual assault and harassment at work;
- work in progress to educate industry and review existing regulation, in particular by the Mental Awareness, Respect and Safety Program (MARS Program), and Elizabeth Shaw of PWC’s review of DMIRS;
- existing platforms that enable third party reporting of sexual harassment and WorkSafe WA’s 24/7 reporting line (but there is a commitment by the WA Government to review and promote these);
- work being undertaken by federal Parliament to implement the remainder of the recommendations of the Australian Human Rights Commission’s Respect@Work report;
- Safe Work Australia’s updates to the model Work Health and Safety regulations regarding psychosocial hazards, following the Boland review; and
- the 163 recommendations made by the Law Reform Commission WA’s review of the Equal Opportunity Act 1984 (WA), including the removal of the disadvantage test.
The widely discussed Report recommendations for an industry register of offenders and proposal for a redress scheme do not appear to be priority areas. The WA Government appears focussed on enhancing agency interface and regulatory guidance. For example, the WA Government has committed to:
- develop a memorandum of understanding between DMIRS/WorkSafe WA and the WA Police on the management of sexual harassment incidents at workplaces. This memorandum of understanding will outline the jurisdictional responsibilities of each organisation, as well as include a protocol for resolving matters where there is ambiguity;
- produce new guidance on non-disclosure agreements and a Code of Practice regarding mining and construction accommodation;
- review Equal Opportunity Act 1984 (WA) guidance, to explain the planned reforms, once implemented; and
- an ‘Enough is Enough’ convention in the first part of 2023, as a way to drive cultural change across the mining industry.
Key takeaways
The Response appropriately acknowledges that there is significant national momentum to eliminate sexual harassment from workplaces. There is a lot more work to be done, but never have there been more tools and momentum to achieve change. We are hopeful the further measures outlined in the Response, while limited, will be another step toward a world where it is a social norm for employees to work in workplaces that are free from sexual harassment, in the way that drink driving and not wearing seatbelts have been eliminated from accepted cultural practices within society.
| Target | Recommendation | Response |
| Government | 1 – Establish a forum for victims of historical workplace sexual harassment. | Support in principle. Notes existing avenues and commits to funding a community legal and advocacy service to provide guidance to affected Western Australians. |
| Government | 10 – Instruct DMIRS to work with WorkSafe WA to prepare regular audits. | Support in principle. WorkSafe limited to sexual harassment, as sexual assault is criminal. References the MARS program as an avenue for data collection. |
| Government | 11 – Determine the best-placed entity to become central coordinator and record keeper. | Supported. Government Acknowledges WorkSafe as the central coordinator and record keeper. Notes the Shaw review to support DMIRS in improving its enforcement model. |
| Government | 12 – Direct DMIRS to explore further options which do not compromise any complainant’s anonymity | Supported. WorkSafe has a team of specialist inspectors. Existing surveys and audits such as the mentally healthy workplaces audit tool. New triaging area at WorkSafe. Notes s 155 of WHS Act for regulator to require audits. |
| Government | 13 – WorkSafe to use industry influence and ensure appropriate information sharing arrangement between DMIRS and WAPOL. | Supported in principle. WorkSafe in conjunction with industry to develop contemporary guidance on workplace investigation and training requirements. MOU will outline jurisdictional responsibilities and establish protocols to resolve matters where there is ambiguity. |
| Government | 14 – Industry funded rollout of consistent third party reporting platforms | Supported in principle. Supports full assessment of existing platforms by MAPAC. Promotion of WorkSafe’s 24/7 reporting line. Promotion through the MARS program. |
| Government | 15 – DMIRS to work with mining peak bodies to develop education and training for bystanders. | Supported. Government working with industry already. Peak Body Grants Program. MARS Program. |
| Government | 17 – DMIRS to investigate and monitor use of NDA’s | Supported. Government will instruct accordingly. Notes parallel with recommendation 38 of Respect@Work. Will work with the Cth, and guidance may be released by Safe Work Australia. |
| Government | 18 – DMIRS has an effective and comprehensive data management system. | Supported. Government has funded DMIRS as such. DMIRS safety management system modernisation program. |
| Government | 19 – Public status updates of the formal information sharing arrangement between WAPOL and DMIRS. | Supported. Impending MOU will outline the responsibility and DMIRS will provide updates. |
| Government | 20 – Reform the equal opportunity act and remove the disadvantage test. | Supported. LRCWA review of the Act tabled on 16 August 2022. Government broadly accepted most recommendations, including removal of the disadvantage test. |
| Government | 21 – Consistent and comprehensive definition of sexual harassment across regulatory framework | Supported. Equal Opportunity Act to adopt same definition as included in Cth Sex Discrimination Act. Also upcoming amendment of model regulations to include a definition of sexual harassment. Commits to an amendment of the WA regulations. DMIRS to then update its publications. |
| Government | 22 – Regular updates from government. | Supported. Minister to provide updates on current ongoing reviews. |
| Government | 23 – Development of comprehensive standards and guidelines to lead to the integration of sexual harassment into work health and safety practice. | Supported. Government recognises sexual harassment is a work health and safety issue. Minister for IR committed to adopting the model WHS regulations dealing with psychosocial risks as recommended by the Boland Review once adopted by Safe Work Australia. WHSC has developed codes of practice relating to psychosocial harms. DMIRS to review its codes of practice. Government to host an ‘Enough is Enough’ convention to help drive cultural change across WA in first part of 2023. |
| Government | 24 – Establish expert group within WorkSafe WA. | Supported. Awaiting provision of expert advice from the Regulatory Capability Review to fully inform response which will include consideration of WorkSafe Victoria’s approach. Provide an update before the end of the year. |
| Industry | 2 – Serious repercussions including dismissal for any person who has attempted to seek sexual favours for advantage. | Noted. Notes recent strengthening of WA Laws including increase of WAIRC powers to be in line with FWC. Also introduction of the WHS act. |
| Industry | 3 – Explore ways to prevent perpetrators simply finding reemployment. | Noted. Industry is responsible to ensure safe, healthy and respectful workplaces |
| Industry | 4 – Implementation of moderate drinking standards. | Noted. Aligns with National Health and Medical Research Council Alcohol Guidelines. |
| Industry | 5 – Improving gender balance. | Noted. Supports gender balance. Wil explore possible regulatory changes to assist in improving transparency of gender participation. |
| Industry | 6 – Reduce risks which are exacerbated by high rates of labour hire and subcontracting | Noted. Request MAPAC to consider amendments to the Mines Safety Management System Code of Practice. |
| Industry | 7 – Develop a framework to assist all companies to review culture. | Noted. Resources already exist for industry, for example WorkSafe resources for workplace culture review. WorkSafe will continue to educate and is upskilling inspectors with specific training on psychosocial hazards. Notes MARS program. |
| Industry | 8 – Establish acceptable standard for accommodation | Noted. Minister for Industrial Relations to request WHSC and MAPAC to develop a Code of Practice for mining and construction accommodation. |
| Industry | 9 – Ensure training is accredited, fit for purpose and delivered by suitable practitioners. | Noted. Notes the MARS program and development of Respect in Mining training program. |
| Industry | 16 – Establish internal and external options for reporting and obtaining support. | Noted. Notes that reporting obligations fall upon the PCBU and that it will continue to educate to ensure reporting obligations are thoroughly understood. Promotion of WorkSafe reporting line. |
For further information, please contact:
Anna Creegan, Partner, Herbert Smith Freehills
anna.creegan@hsf.com
