Employment Law

Warning: This content discusses sexual harassment

In 2022, the ‘Enough is Enough’ report by a WA Parliament Community Development and Justice Standing Committee revealed alarming information about the FIFO (fly-in-fly-out) mining industry.

The Parliamentary inquiry received eighty-seven written submissions, several of which detailed testimonies of workplace sexual harassment. The Chair of the inquiry stated that despite knowing horrific stories would come forward, she was

“shocked and appalled well beyond expectation by the size and the depth of the problem”

FIFO workplace sexual harassment was documented from peer-to-peer, as well as perpetrated by people in positions of power. In the report, female workers described experiences involving leering, sexually suggestive comments, and ‘vile’ texts received via mobile. These testimonies are only a few presented in the report. It was also found that incivility was a precursor to worse behaviour.

The Enough is Enough report confirmed systemic, widespread sexual harassment and discrimination in the mining industry. BHP, Rio Tinto and more recently, Fortescue, are all presently facing class actions on allegations of sexual harassment and sex discrimination. Within the 2025-2026 period alone, there were 113 confirmed reports of sexual harassment at BHP workplaces leading to 109 workers losing their jobs or resigning.

However, workplace sexual harassment concerns are far from restricted to the mining industry.

The Australian Human Rights Commission (AHRC) released a National Inquiry in 2020 into workplace sexual harassment, known as Respect@Work. The report states that one in three people indicated they had experienced sexual harassment at work in the past 5 years. This was broken down into almost two in five women (39%), and just over one in four men (26%). The report also concluded that workplace sexual harassment is widely underreported, despite being widespread.

While drivers of the issue are not always evident, they can include: power imbalances, gender inequality, lack of accountability, industry factors (pressure, expected consumption of alcohol, insecure work), and intersecting forms of discrimination.

Regardless of whether you are an employee or an employer, it is important to understand your rights and obligations.

What is workplace sexual harassment?

The Sex Discrimination Act 1984 outlines what constitutes sexual harassment in the workplace. It is federal legislation, meaning it applies to all Australian states and territories. Generally, sexual harassment involves making an unwelcome sexual advance, an unwelcome request for sexual favours, or engaging in other unwelcome conduct of a sexual nature in relation to the person being harassed. The harassment must be in circumstances where a reasonable person would have anticipated that the person harassed would be offended, humiliated, or intimidated. It is not necessary for the offender to have intended their behaviour to be sexual harassment; it can still be unlawful regardless.

Sexual harassment and sex-based harassment can present in many ways. It may be a one-off incident or a pattern of incidents. Examples of conduct that could constitute sexual harassment include:

• Unwelcome physical contact,
• Inappropriate or repeated invitations to go out on dates,
• Sexualised gifts, images or videos,
• Inappropriate staring or leering, and
• Sexual innuendos, insinuations or jokes.

What constitutes a ‘workplace’ or ‘work’ is broadly defined. Under the Fair Work Act 2009, s 527D prohibits sexual harassment ‘in connection with work’. It can cover conduct by volunteers, clients, customers, colleagues, trainees, contractors and managers.

We have also written a more extensive list of behaviours that could constitute workplace sexual harassment.

If you have experienced harassment

For those who have experienced workplace sexual harassment, there are many pathways for resolution and compensation beyond raising it internally.

1. An application can be made to the Fair Work Commission to seek a stop sexual harassment order, resolve a dispute in another way, or do both. An application must be made within two years of the alleged harassment. In dealing with the dispute, the Commission may attempt conciliation, provide a recommendation or an opinion. If the dispute remains unresolved, the Commission can issue a certificate allowing the case to proceed to court or to arbitration if both sides agree. Compensation and civil penalties may be ordered.
2. A claim can be pursued under the Sex Discrimination Act 1984. The Australian Human Rights Commission has the power to investigate these claims.
3. A claim can be made under the Fair Work Act in certain circumstances where workplace sexual harassment led to a breach of general protections rights (e.g., dismissal, demotion, etc.).
4. A workers’ compensation claim can be made if the sexual harassment has led to a physical or psychological injury.

A workers’ compensation claim and a civil claim are not mutually exclusive. Further compensation may be available outside of workers’ compensation claims.

Positive Duty and Liability for Employers

Employers have a positive duty to take ‘reasonable and proportionate measures’ to eliminate sexual harassment in the workplace. This duty extends to ‘persons conducting a business or undertaking’ too. Positive duty steps, as outlined by the Australian Human Rights Commission, involve;

• Specific standards in leadership, particularly for senior leaders,
• Fostering a safe, respectful and inclusive culture,
• Having a policy regarding behaviour and conduct,
• Risk management in both prevention and response,
• Support for workers who experience and witness conduct,
• Communicated options for reporting and responding to conduct, and
• Monitoring and evaluating the workplace, and being transparent about reported behaviours.

The Commission has the power to investigate and enforce the positive duty.

Moreover, employers may be held vicariously liable for sexual harassment by an employee or agent if they cannot demonstrate they took all reasonable steps to prevent it. Cases suggest that having a policy alone will not be enough to prove all reasonable steps were taken.

How Koffels can help

We offer a confidential initial consultation and a no-obligation assessment of your situation with an experienced employment lawyer.