A WA inquiry into sexual harassment in the FIFO resources sector has exposed systemic failures of workplace safety, culture, governance and regulation. Employers will soon be required to have a positive duty for prevention, with repercussions for directors.
West Australian Liberal MLA Libby Mettam says she expected to hear horrific stories after agreeing to chair a WA parliamentary inquiry into sexual harassment in the FIFO (fly-in fly-out) mining industry. However, she was shocked well beyond expectation when she realised the size and depth of the problem.
In her foreword to the final report — Enough is Enough: Sexual harassment against women in the FIFO mining industry — released in June this year, Mettam wrote: “We were told how sexual harassment is generally accepted or overlooked, of the abuse of positions of power, of serious breaches of codes of conduct and the culture of cover-up. To hear the lived reality of the taunts, attacks and targeted violence, the devastation and despair the victims experienced, the threats to or loss of their livelihood that resulted, was shattering and completely inexcusable.”
In an ABC radio interview in June, WA Minister for Women’s Interests Simone McGurk MLA said that mining companies generated $230b in 2021, employing about 150,000 people in WA alone. “These [companies] have got the capacity to deal with this,” said McGurk. “There is a big obligation on them to drive change. Some of these attitudes are baked in with some men. These are big challenges, but they are not beyond us.”
The inquiry was triggered by a series of public reports of sexual assault and harassment in FIFO workplaces. The committee received 87 written submissions and heard testimony from 44 people representing companies, organisations or providing professional testimony — as well as individuals who recounted their personal experience of sexual harassment in the sector.
It concluded that sexual harassment continues to be prevalent and, in line with the findings of the Australian Human Rights Commission Respect@Work: Sexual Harassment National Inquiry Report (2020), that mining is one of the worst-performing industries overall. At 75 per cent, the incidence of female harassment ranks second only to the similarly male-dominated information, media and telecommunications industry.
One conclusion — described as “resounding” — was that FIFO embodies all the main risks to sexual harassment, including poor culture, gender inequality and power imbalance in the workplace. Women remain a minority in the field, and the isolation of the FIFO environment fostered a sense of “the way we do things here” and “what happens at camp, stays at camp”. However, the significant power imbalance was identified as possibly the most troubling issue.
“Mining is a particularly hierarchical industry, and this has enabled appalling behaviour to continue, up to and including managers and supervisors seeking sexual favours from employees in return for promotion or security of employment,” the report says.
There was also little expectation that bad behaviour would lead to any consequences.
The committee was shocked that senior industry leaders seemed so surprised by the breadth of the problem. It regarded the failure to recognise what was happening in their workplaces as a sign of corporate failure that companies and the industry cannot avoid or downplay.
The regulatory framework also came under scrutiny. Sexual harassment in the workplace sits within a complex legislative framework involving Commonwealth employment and sex discrimination laws, as well as WA equal opportunity and workplace safety regulation. The inquiry noted the broad support from stakeholders for a uniform and contemporary definition in the Work Health and Safety Act and the Equal Opportunity Act.
Recent changes to the WA system have brought psychosocial harm and, by extension, sexual harassment within the work health and safety regime. WA’s Department of Mines, Industry Regulation and Safety has appointed PwC workplace culture expert Elizabeth Shaw to examine its response to sexual assaults in the sector, and WorkSafe WA has subsequently issued a new code of conduct that names sexual harassment as unacceptable behaviour.
Nevertheless, more work needs to be done to bring the same level of guidance, regulation and practice to matters of sexual harassment as those that already exist for matters of more traditional workplace safety. “Changing culture is never easy to achieve and extremely difficult to mandate,” the report concluded. “But this is a case where some of the richest and most powerful companies in Australia must move beyond careful statements of intent and make their workplaces and their workers free from harm.”
60,000+ FIFO workers in WA
19.1% of mine workforce is female
63% of WA mining workforce estimated to be FIFO
74% of WA mining workers who reported sexual harassment at work were women
Sexual harassment isn’t mentioned explicitly in a director’s duties, although Enough is Enough points to increasing acceptance that inculcating ethical values in workplace operations and culture is an essential board role. This includes the choice of CEO.
In the Respect@Work report, women’s personal experiences spelled out current failures, as follows: “I put in a formal complaint to the chairman of the board of this company about my immediate supervisor, the executive director of this company, as he had been systematically sexually harassing me for many years. I was fired after I complained.”
“I’ve heard a story of a member who was sexually harassed by a CEO and reported that. The CEO handed in his resignation because he’d had multiple complaints from multiple women and this was the final straw, and the board rejected his resignation because he did a good job. So if the board isn’t accountable, then no-one is accountable.”
Company Director approached a number of leading directors and executives in the resources sector, but they declined to comment. However, companies and industry representatives were keen to tell the FIFO inquiry they had no tolerance for sexual harassment and assault:
“Sexual harassment or assault in the workplace or linked to the workplace is unacceptable and APPEA (Australian Petroleum Production and Exploration Association) members have a zero- tolerance approach to such behaviour.”
“The industry is committed to eliminating fatalities, injuries and occupational illnesses, with a strong focus on building and sustaining respectful workplaces.”
While committee members didn’t doubt the sincerity of industry organisations, they noted the disconnect between their views and what they heard in personal evidence could not be more stark.
Dr Erica Smyth AC FAICD has 45 years’ experience in the mineral and petroleum industries and is currently a director of MinEx CRC. She believes that, in general, boards neither receive nor actively seek out accurate information about harassment in their workplace.
“They need to know about every incident, not just the ones that get escalated,” says Smyth. “As with safety, this must include information from all of their contractors. FIFO sites are very complicated in terms of who is reporting to whom, so there must be agreed protocols to ensure nothing is being overlooked or hidden.”
The risk to business
Beyond the human suffering, Enough is Enough noted a clear business risk from the exposure of this problem. The Australasian Centre for Corporate Responsibility (ACCR), writing specifically about the WA experience, notes that, “sexual harassment reveals significant future problems for companies in terms of profitability, labour costs and stock performance.”
Paul Everingham MAICD, former CEO of The Chamber of Minerals and Energy of Western Australia (CME), told the committee that member companies are being asked by their boards why they are not doing more.
“Nearly all of our members are public companies,” said Everingham. “They are open to shareholder scrutiny and their boards are under constant scrutiny around their licences to operate.”
Debby Blakey GAICD, CEO of HESTA superannuation, sees company, sector and system level risks when culture isn’t prioritised, and these can negatively impact investment returns and the retirement savings of HESTA’s members.
“Sexual harassment can create legal and financial risks, impact employee wellbeing and productivity, and significantly damage a company’s reputation and social licence to operate,” says Blakey. “We want a strong, fair and inclusive corporate culture as that is what underpins a company’s productivity and impacts its long-term value.”
In February 2022, Rio Tinto published an independent review of its workplace culture carried out by former Australian Sex Discrimination Commissioner Elizabeth Broderick AO. This identified bullying, sexual harassment, racism and other forms of discrimination throughout the company, prefiguring the findings of Enough is Enough, which was published four months later.
While concerned by the findings, Blakey praised Rio for setting a new standard for transparency. “Transparency helps to build investor trust and we hope it will encourage a productive and honest dialogue across the mining sector,” she says.
To encourage the conversation, she asked the management of other big mining companies whether they were also presiding over a culture of systemic bullying, racism and sexism. “The responses we received were quite varied,” says Blakey. “While some companies are more progressed than others, all of those we spoke to said they have initiated some level of activity or interventions to address workplace sexual harassment. We want the companies we invest in to facilitate the equal participation of women in the economy and fully harness their value, because everyone can benefit. Gender equality is good for investors, good for the economy and good for women. Providing safe workplaces is key to achieving that.”
The introduction of a positive duty
Prime Minister Anthony Albanese has committed to implementing all 55 recommendations set out in Respect@Work. Most significant of these is the amendment of the Sex Discrimination Act 1984 (Cth) to include a positive duty requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation.
“That’s going to be a game changer,” says Karen Iles GAICD, director at Violet Co Legal & Consulting. “Of course, boards and management should have an obligation to keep their workplace free of sexual harassment, but I don’t think many directors have a sense of how soon that change is coming or exactly what it means for them.”
Iles believes as companies come to understand what a positive duty entails, the prospect of shifting from reacting to complaints to taking proactive action to prevent sexual harassment could feel overwhelming.
“We know that the main driver of sexual harassment is gender inequality, which can infiltrate every level of an organisation,” she says. “Directors need to look at inequalities in terms of pay, promotion, culture and leadership styles, so there’s no escaping the fact that this is a complex challenge. But the only alternative to doing the work is accepting that nothing is going to change and women must continue to suffer.”
What they said
“I have been to about half a dozen sites, and I can truthfully state that I have been sexually harassed at every single one of them.”
“It is that bullying, that sexism, that is so casual, but so poignant and it just beats you down, and beats you down, and beats you down, so it just gradually wears away at you.”
“I had men come in to my camp room and push me on to my bed and kiss me. I was lucky that it stopped there, it didn’t for some girls and guys.”
“Female-dominated organisations do not generate sexual harassment complaints.”
Dr John Byrne, WA Commissioner for Equal Opportunity
“Have we failed as an industry? Absolutely.”
Paul Everingham MAICD, former CEO of The Chamber of Minerals and Energy of Western Australia
“Any instances of sexual assault or sexual harassment on site or in work-adjacent settings are completely unacceptable, and the health and safety of our workers must always be the sector’s number-one priority.”
Rob Carruthers, acting CEO of The Chamber of Minerals and Energy of Western Australia
“Women are tired of hearing these stories and what’s going to change?”
Simone McGurk, WA Minister for Women’s Interests
Positive duty — how directors can prepare
Take a trauma-based approach to reporting The 2018 Australian Human Rights Commission Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces report found that just 17 per cent of people made a formal complaint in relation to sexual harassment. Karen Iles GAICD, director at Violet Co Legal & Consulting, isn’t surprised. “I have been the victim of sexual abuse myself and, unless you’ve been there, it’s very hard to understand just how difficult it is to talk about what happened to you, much less keep on repeating it,” she says. “In my experience, disclosure often starts during a conversation with a manager or an HR professional and then the woman is told she must formalise the complaint by writing it down. Why can’t those people in positions of authority start acting on what they’ve heard? Until reporting is approached in a more trauma-informed way, little is likely to change.”
Reporting is also influenced by what a victim expects to happen next. Forty-five per cent of those who did make a complaint said that, afterwards, nothing changed. “You can’t trust a process if there are no clear consequences,” says Dr Erica Smyth AC FAICD, a director of MinEx CRC. “On a mine site, there’s a lot to consider — not least the presumption of innocence until proved guilty. For example, if Joe Bloggs is accused of harassment, will he automatically be forced to take a leave of absence until the case has been heard and outcome decided? If so, will that be with or without pay? If he’s found guilty does he lose his job — and do you tell other companies he’s unemployable? What if he’s a contractor and moves to another site? If there’s a criminal case against him, this should be picked up during a police check but, as most women can’t bear to face a courtroom experience, it’s quite easy to be a serial offender. And there’s the question of what happens if he isn’t guilty. It may not happen very often, but I have seen a situation where a woman made a false accusation. There’s always a chance that an innocent man could automatically lose his job.”
Rethink zero tolerance
Enough is Enough noted that the idea of “zero tolerance” as a crime prevention strategy is much more fragile than proponents would like to believe.
“We appreciate the strong stand and the wish to stamp out poor behaviour, but implementing zero tolerance policies without due caution and in the absence of clear and well-designed supports might lead to unintended consequences, and could in some cases be counter- productive,” the report said.
Address gender inequality
While gender inequality is a core driver of sexual harassment factors such as disability, race and sexuality can also compound the imbalance of power.
“Aboriginal women are much more likely to experience workplace sexual harassment and racism than other women,” says Iles. “As an Aboriginal woman myself, I’ve seen that first-hand — and I don’t
think there should be any difference between the remedies or the penalties for harassing someone because of their gender and harassing someone because of their race.”
Consider the impact of alcohol
In Change the Story: A shared framework for the primary prevention of violence against women and their children in Australia, a report by independent NFP Our Watch, a foundation working for the primary prevention of violence against women and children in Australia, it was identified that “harmful use of alcohol” was a factor that can interact with the gendered drivers of violence against women to increase the probability and severity of such violence.
“I believe that all sites should be alcohol-free, both from a harassment and a safety point of view,” says Smyth. “Offshore oil rigs have been dry for the past 30 years. I don’t know the stats, but I’d guess that alcohol is involved in more than half of the incidents, so why wouldn’t you just cut it out?”
Consider lived experience
Iles suspects few directors understand what sexual harassment really means in the context of power and gender inequality.
“We still have the systemic issue of boards being dominated by men who are unlikely to have experienced workplace sexual harassment, racism or any other form of discrimination,” she says. “Although the number of women on boards is increasing, it’s still likely that none of the directors has lived experience of sexual abuse. However well- intentioned they are, they need to hear that voice.”
Practice resources — supporting good governance
The AICD has supported the introduction of a positive duty on employers under the Sex Discrimination Act 1984 (Cth) that would require them to take reasonable and proportionate steps to eliminate sex discrimination, sexual harassment and victimisation.
Examples of the AICD’s resources to guide directors in shifting the focus to prevention:
- Preventing workplace sexual harassment Obligations for directors
- A director’s guide to preventing and responding to sexual harassment at work
Ethics in the Boardroom
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