Thursday, 2 September 2021
Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021; Second Reading
I present a revised explanatory memorandum to this bill, and I move:
That this bill be now read a second time.
Sexual harassment is unacceptable in any context, whether in the workplace or elsewhere. Everyone has the right to feel safe at work.
That is why the Australian government commissioned a landmark National Inquiry into Sexual Harassment in Australian Workplaces. The government thanks the Sex Discrimination Commissioner, Kate Jenkins, for her leadership conducting the inquiry.
The product of this inquiry—the Respect@Work report—made 55 recommendations to improve the prevention and response to workplace sexual harassment, informed by extensive stakeholder consultation and analysis. The Respect@Work report highlights the important roles that the Australian government, states and territories, employers, and industry groups all have in supporting cultural change and creating safe workplaces.
The government's Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces—released on 8 April 2021—sets out its long-term commitment to preventing and addressing sexual harassment, agreeing to (in full, in-principle, or in-part) or noting all 55 recommendations of the Respect@Work report.
The government has already provided more than $64 million over four years in the 2021-22 federal budget to support implementation.
For those recommendations that require action from the state and territory governments, the Government has led discussions through appropriate national forums, including at National Cabinet and the Meeting of Attorneys-General.
The Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021before us today represents a significant step by the government to swiftly implement a number of reforms in response to the findings of the Respect@Work report. These amendments are aimed at rapidly strengthening and streamlining the national legal frameworks that deal with sexual harassment. The bill makes important changes to the Sex Discrimination Act 1984, the Australian Human Rights Commission Act 1986 and the Fair Work Act 2009 to ensure Australia's legal frameworks are effective in preventing and responding to sexual harassment.
I thank the Senate Education and Employment Legislation Committee for its consideration of the bill and recommendation that the bill be passed. I would also like to thank all stakeholders that engaged in this review process.
Sex Discrimination Act amendments
The Sex Discrimination Act provides an important framework to protect against discrimination on various grounds, including discrimination involving harassment.
The bill introduces a new object in the Sex Discrimination Act of achieving equality of opportunity, so far as practicable, between men and women. While achieving substantive equality between men and women requires a cultural change that goes beyond legislative reform, the government is confident that this bill, in addition to the other work that the Government and civil society is progressing to implement the Roadmap, will be a step towards achieving equality of opportunity between men and women in Australia.
The bill also makes a number of changes to expand the scope of existing protections under the Sex Discrimination Act.
These include amendments to remove the exemption of state and territory public servants and clarify that the Sex Discrimination Act extends to members of parliament and judges at the federal and state and territory levels. These amendments will ensure all workers have the same protections from sex discrimination and sexual harassment regardless of their jurisdiction, occupation or workplace.
The bill also makes clear that discrimination involving harassment on the ground of a person's sex is expressly prohibited and will not be tolerated. Making this clear under the Sex Discrimination Act will ensure there is a clear avenue of redress for sex based harassment, which does not always involve sexualised conduct.
Importantly, the bill fills gaps in the types of workers protected from sexual harassment under the Sex Discrimination Act. The Respect@Work report identified that the existing sexual harassment protections do not cover all people involved in the contemporary world of work. The bill will address these gaps by expanding the scope of the sexual harassment and sex based harassment protections to all types of paid and unpaid workers. The amendments draw on concepts used in the model work health and safety laws to ensure greater consistency between legal frameworks and make it easier for both workers and employers to navigate these frameworks.
The bill also makes a number of technical amendments, such as clarifying that victimisation under the Sex Discrimination Act can form the basis of a civil action for unlawful discrimination, and ensuring that the ancillary liability of persons involved in unlawful acts extends to sexual and sex based harassment prohibitions under the Sex Discrimination Act.
Australian Human Rights Commission Act amendments
To ensure people who experience sexual harassment and unlawful discrimination are not discouraged from making complaints, the bill will amend the discretion of the President of the Australian Human Rights Commission to terminate a complaint under the Sex Discrimination Act so that it does not arise until 24 months after the alleged discrimination took place. This discretion previously arose after six months.
Fair Work Act amendments
In addition to reforms to the Sex Discrimination Act and Australian Human Rights Commission Act, the bill will amend the Fair Work Act to clarify what action can be taken to deal with workplace sexual harassment.
The bill adds a new legislative note in the unfair dismissal provisions in the Fair Work Act, which makes clear that sexual harassment can constitute a valid reason for dismissal. This is not a change to the law—sexual harassment of course can already constitute a valid reason for dismissal. However, the addition of the legislative note will provide greater certainty to employers that taking disciplinary action in response to workplace sexual harassment is appropriate and reasonable. It also clearly communicates to perpetrators of sexual harassment that this type of behaviour will not be tolerated in the workplace.
The bill will also clarify and expressly provide for the availability of 'stop orders' in relation to sexual harassment within the existing stop-bullying jurisdiction. This change will ensure a clear pathway for those who have been sexually harassed at work to seek an order from the Fair Work Commission to prevent further workplace sexual harassment. This will enable more sexual harassment victims to pursue workplace claims through the commission, which offers an independent, expeditious and low cost avenue for handling workplace sexual harassment.
These amendments form an integral part of the government's long term commitment to building a culture of safe, respectful relationships in Australian workplaces.
This bill also introduces an important change to the compassionate leave provisions in the Fair Work Act that will enable an employee to take compassionate leave if they, or their current spouse or de facto partner, has a miscarriage.
A miscarriage can be an incredibly difficult experience for many families and sadly one that is often surrounded with social stigma and silence.
It is estimated that one in five confirmed pregnancies in Australia ends in miscarriage before 20 weeks, however the Fair Work Act does not currently provide any specific leave entitlements for miscarriage.
Currently, the Fair Work Act provides two days paid compassionate leave (unpaid for casuals) when a member of the employee's immediate family or household contracts or develops a personal illness, or sustains a personal injury, that poses a serious threat to their life, or dies. Compassionate leave is also available where a child is stillborn, where the child would have been a member of the employee's immediate family, or a member of the employee's household, if the child had been born alive.
This change will ensure that an employee can take time away from work to grieve and come to terms with their loss.
The government recognises that most employers are supportive of their employees. Employers can of course continue to offer leave that goes beyond the minimum safety net and employees will continue to have the benefit of any additional related leave terms in existing enterprise agreements.
While not everyone who experiences a miscarriage will want to access compassionate leave, it is important that we give employees the choice to access that leave, should they choose to.
On behalf of the government, I would like to thank all of those who have shared their experiences and incredibly painful memories to bring these changes to Parliament, including the Pink Elephants Support Network and Mr Julian Simmonds MP, the member for Ryan, who has championed this amendment.
In summary, this bill will ensure all Australians are protected from workplace sexual harassment, by expanding the scope of existing sexual harassment prohibitions, promoting clarity for employers and workers, and reducing procedural barriers for sexual harassment complainants.
Together with the other commitments outlined in the government's Roadmap for Respect, these amendments will support the creation of safe workplaces and are essential for advancing both women's safety and economic security.
Leave granted for second reading debate to continue immediately.