Dai Le (Fowler, Independent) Share this | Hansard source

I move:

(1) Schedule 2, item 16, page 11 (after line 4), at the end of Division 4A, add:

35AA Performance of functions relating to positive duty in relation to sex discrimination

In performing its functions under section 35A, the Commission must have regard to:

(a) the need for guidelines and other materials to be available in multiple languages; and

(b) the cultural diversity of Australian workplaces.

I commend the government for keeping to their promise to implement all the Sex Discrimination Commissioner's recommendations for making workplaces safe for all employees, regardless of sex. None of us should face discrimination for any reason at any time, but more so in our workplace, be it in big corporations, small business or government agencies. Creating a safe and respectful workplace is key to a productive and inclusive workforce. If people feel safe, respected and heard, they can perform to the best of their abilities.

That said, if employers can't easily fulfil the obligations that the proposed positive duty imposes, then an undue administrative red tape is imposed, particularly on small businesses with culturally and linguistically diverse owners and employees. Employers are already subject to significant obligations to prevent sexual harassment in the workplace. The opposition mentioned section 106 of the Sex Discrimination Act which makes employers liable for the actions of their employee or agent.

I would now ask the House to specifically consider the challenges that culturally and linguistically diverse Australians face on either side of this issue. The report noted that, while sex discrimination was increasing, reporting was not. The explanation given for this was a lack of faith in the reporting system. I would argue that those who speak English as a second language also face difficulties in reporting this issue effectively. It is undoubtedly a daunting task for these groups of people in our workforce to share their stories. For this reason, greater clarity is required.

In a Senate committee submission Diversity Council Australia raised some important points around intersectionality. Employees from culturally diverse backgrounds not only face increased prevalence of sexual harassment, but there is a compounding effect where there is also unconscious cultural biases at play. It is pervasive in some corporate structures, which I discovered in my previous life as an advocate for cultural diversity and leadership. We need to ensure that those from non-English-speaking backgrounds have the necessary resources and understanding of these new guidelines if you want them to engage with it and feel confident to pursue action despite cultural and linguistic barriers.

While it's important that government policy tries to create a widespread culture of respect, it is evident that some businesses have a greater capacity to comply than others. For example, large corporations have access to HR teams capable of putting together and ensuring compliance with a company-wide policy. This, however, is a large burden to place on a small business where the task may be left with one individual who also doubles as the accountant, the shift manager and other roles.

Small businesses, who are the backbone of our economy, are known to be a diverse sector, where two-thirds of small businesses come from a migrant background. Therefore the guidance materials from relevant bodies must be thorough and meet the needs of a wide cross-section of businesses who wish to ensure a safer workplace. While some businesses will have to be vigilant regarding internal issues, others, especially those in industries where employees are customer-facing, will have to create policy to reasonably diminish the chance of discrimination from customers.

I call on the government to ensure that they have given enough support to businesses to comply with this new legislation—in particular, small businesses run by culturally and linguistically diverse individuals in a variety of industries. In saying this, a worrying part of the legal process can be found in schedule 4, which makes it easier for unions and other representative groups to bring a grief claim to the Federal Court. I urge the government to reconsider this schedule as it allows large representative groups to initiate legal actions in their interests, rather than being solely about the protection of employees. We want to ensure those from non-English-speaking backgrounds have the support they need but won't be taken advantage of by other bodies with other vested interests. Litigants should be taken by the applicant with the support of the unions or representative bodies, not the other way around.

In summary, it isn't that my complaints line up with the aims of this bill, but rather with the lack of consideration for culturally diverse workplaces and their employees. I call on the government to ensure our culturally and linguistically diverse populations can access the reporting mechanisms as employees, and support small businesses through compliance hurdles. In its current form, these opaque guidelines are sparking debate amongst a group of individuals who largely speak English and have access to briefings and staff to help them understand the regulations. It's excluding those who lack these resources and who don't speak English as their first language, and unfairly expects them to reasonably comply.

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